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TMI Blog1959 (2) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. The fourth respondent and two others preferred appeals against the said order to the Central Road Traffic Board, Madras, the third respondent herein. The Central Road Traffic Board by its order dated June 25, 1955, set aside the order of the Regional Transport Authority and granted the permit to the fourth respondent. The appellant preferred a Revision Petition against that order to the first respondent, the State of Madras, but the first respondent rejected the petition by its order dated October 14, 1955. Thereafter, the appellant filed a Writ Petition (No. 852 of 1955) in the High Court of Madras under Art. 226 of the Constitution to quash the orders of the Central Road Traffic Board and the State of Madras. Rajagopalan, J., of the said High Court by his order dated May 1, 1956, quashed the order of the Government and directed the State Transport Appellate Tribunal which had been constituted in place of the Central Road Traffic Board to dispose of the appeal in accordance with law. Against the judgment of the learned Judge, the fourth respondent preferred as appeal under the Letters Patent and the Appellate Bench of that High Court, consisting of Rajamannar, C.J., and Ramas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On November 15, 1954, in supersession of paragraph 2 of the above order, the Government issued an order, G.O. Ms. No. 3353 Home, to the following effect : The Governor of Madras hereby directs that each viable stage carriage unit in this State shall consist of not less than 10 buses and that in the matter of grant of stage carriage permits, other things being equal, and with a view to build up such viable units, the following shall be the order of preference : (1) Operators with less than 10 buses but nearer the mark of 10. (2) Operators with 10 and more buses. (3) Others including new entrants. The Governor also directs that in order to facilitate the amalgamation of existing small units into viable units transfer of permits shall be allowed liberally. On June 15, 1955, the Government issued another order, G.O. Ms. No. 1689 Home, whereby the Central Road Traffic Board was informed that pending further orders of Government after re-examination of the question of formation of viable units of stage carriages, the orders in para. (2) of G.O. Ms. No. 1037 Home dated 28th March, 1953, would be in force. The effect of this order was that the first orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al tribunal. The main controversy centers round the fact whether the orders made and the directions issued by the State Government under s. 43A of the Act are laws as to attract the operation of the aforesaid principles. While Mr. Pathak says that the said directions are as much laws as those of the provisions of a statute or rules made there under, Mr. A. Viswanatha Sastri contends that, having regard to the scheme of the Motor Vehicles Act and the different sections of the Act vesting powers in the State Government with regard to different matters dealt with by the Act, the power conferred on the State Government under s. 43A is a power to make orders or issue directions in respect of administrative matters regulating the relationship between the State Government and the Transport Authorities and that such orders do not affect the legality or the validity of judicial acts of the said authorities. To appreciate the rival contentions, it is necessary to consider the relevant provisions of the Act. 6. The Act, which is a Central Act, was passed in the year 1939 and subsequently it was amended from time to time both by Parliament and also by the local legislatures. The main obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trative head of all the other Transport Authorities functioning in the State, and the Central Road Traffic Board the appellate authority in the hierarchy of Tribunals constituted under the Act. As the administrative head the State Transport Authority is authorized under s. 44(4) of the Act to issue directions to any Regional Transport Authority, who shall be guided by such directions. As an appellate tribunal the Central Road Traffic Board is empowered to dispose of the appeals preferred against the orders made by the subordinate authorities under the Act in respect of specified matters. But the Central Act did not make any provision enabling the State Governments to control either the quasi-judicial or the administrative wings of the machinery provided under the Act. While the State Transport Authorities could issue directions to other Transport Authority constituted under the Act, a State Government could not likewise issue any directions either to the State Transport Authority or to its subordinate authorities. So too, while the Central Road Traffic Board could in its appellate jurisdiction set aside or modify the orders of the subordinate tribunals, the State Government was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular decision in a given case; and it would be destructive of the entire judicial procedure envisaged by the Act and the rules framed there under in the matter of disposal of specified questions. It would be attributing to the legislature an incongruity, for the State Government could issue directions in respect of which it could make rules ignoring the safeguards provided in the making of the rules. Section 133 lays down that every power to make rules given by the Act is subject to the condition of the rules being made after previous publication. It also enjoins on the Central and the State Governments to place the said rules for not less than fourteen days before the appropriate legislature and the rules so made shall be subject to such modification as the legislature may make in such session in which they are so laid. All these salutary precautions can be ignored if the directions given under s. 43A are given the status of law; on the other hand, if a restrictive meaning is given as it should be in the context, there would be a happy correlation of the functions of the various bodies under the Act, including the Government. The Government's legislative power is recogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the declaration in the section that the orders and the directions under the section shall be binding on the authorities concerned is indicative of the fact that they are not laws, for if they are laws, no such declaration is necessary. What is more, they need not even be published and may, if the Government so desires, take the form of secret communication to the authorities concerned. Nor is there any basis for the argument that as the directions are issued under a statutory power, they are laws . The source of the power does not affect the character of the things done in exercise of that power. Whether it is a law or an administrative direction depends upon the character or nature of the orders or directions authorized to be issued in exercise of the power conferred. That should be determined on other considerations adverted to by us already. Our view is in accord with that expressed by a Division Bench of the Madras High Court in C.S.S. Motor Service, Tenkasi v. The State of Madras I.L.R. 1953 Mad. 304. There the constitutional validity of Sections 42, 43A, 47, 48 and 64A of the Act was questioned. In dealing with s. 43A, Venkatarama Ayyar, J., who delivered the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. One of the contentions raised was that as the mandatory direction given by the State Government under s. 43A was not followed, the Regional Transport Authority in exercising its powers under s. 60 should have held that there was no over-loading. In rejecting this plea, the High Court observed at p. 885 thus : Government has power to frame rules and also to issue administrative directions of a general character under Section 43-A of the Act. ........ In so far as the order was couched in mandatory terms, it is incumbent upon the officers concerned to comply with it. .................................................................... Any instruction given under Section 43-A cannot override the discretionary power conferred upon the Transport Authority under section 60. ....... We, therefore, hold that the order of the Government contained only administrative instructions issued under Section 43-A. It is true that some of the administrative instructions impose a mandatory duty on the officers concerned and if they do not discharge their duty, Government may take disciplinary action against them. But, in our view, non-compliance with those directions cannot affect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority in accordance with orders and directions of a general character issued by the State Government. The directions were not new law that came into existence pending the appeal, but only issued under a law that was in existence even at the time he applied for a permit. The law was that embodied in s. 43A of the Act, namely, that the Government could issue directions binding on the authorities concerned and that law was a pre-existing one and the application had to be disposed of subject to that law till it was finally terminated by an order of the highest tribunal in the hierarchy. In this view also there are no merits in the appellant's contention. 14. Now coming to the merits of the case, the contentions of the parties may be stated thus : The learned Counsel for the respondents contends that there is no material difference between G.O. Ms. No. 1037 and G.O. Ms. No. 3353, except in regard to one circumstance, which is not material for the present purpose : while in the former G.O., the argument proceeds, the transport authority is directed to work up to a minimum of five units with a spare bus, under the latter G.O., the viable unit fixed is not less than ten buses and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irects that in order to facilitate the amalgamation of existing small units into viable units transfer of permits shall be allowed liberally. 15. The G.O., was issued to achieve the object of inducing the operators to amalgamate wherever possible, into big viable units to enable them to achieve better returns and maintain better standards of operation. The Government decided that a unit of at least ten buses would be necessary to achieve that object. To implement that policy, it directed that each viable stage carriage unit should consist of not less than ten buses and with a view to build up such viable units, it directed that, other things being equal, the order of preference contained therein should be followed. The order of preference contained three categories, one excluding the other. They did not provide for any rules of preference inter se of operators coming within each one of the categories. Presumably, that was left to be decided by the transport authorities, having regard to the considerations mentioned in s. 47. The argument of the learned Counsel for the fourth respondent is based upon the first category, which reads : Operators with less than 10 buses but n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G.O. Ms. No. 3353 of 1954, the fourth respondent would not have been entitled to the permit. 16. But as we have held that the said order was not law but was only an administrative direction, it could not affect the validity of the order of the Central Road Traffic Board, if it made the order, having regard to the consideration laid down in s. 47 of the Act. The main consideration under s. 47 of the Act is that the Regional Transport Authority shall, in deciding whether to grant or refuse such carriage permit, have regard to the interest of the public generally. The Central Road Traffic Board, after having found that the appellant had other advantages such as he operated a three-route permit touching the route under appeal, that his record was satisfactory and that he was not inefficient, came to the conclusion that by giving the permit to the fourth respondent, it would be encouraging not only healthy competition but also would be enabling him to work out to the minimum of five permits. It is true that if the 1954 order should govern the selection, the main reason given by the Board would be wrong. Whether a small unit or a large unit would be viable or would be in the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services, are controlled by Sections 42 to 68 contained in Chapter IV of the Motor Vehicles Act, 1939. The Act provides that no vehicle can be used as a stage carriage save in accordance with a permit granted by a regional Transport Authority set up by the State Government. Section 47 of the Act lays down certain maters to which a Regional Transport Authority shall have regard in deciding whether to grant or refuse a stage carriage permit, one of which is the interest of the public generally. Section 68 of the Act authorises the State Government to make rules for the purpose of carrying into effect the provisions of Chapter IV. The rules framed under this section do not contain anything to guide the Regional Transport Authority in the matter of granting the permits save that r. 150 provides that it shall in all matters be subject to the orders of the Government and shall give effect to all orders passed by the Government whether on appeal or otherwise. Section 43-A of the Act however gives the State Government power to issue orders and directions to the Regional Transport Authority. That section is in these terms : The State Government may issue such orders and directions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fresh order being G.O. Ms. No. 1403 cancelling G.O. Ms. No. 3353 and on June 15, 1955, it passed another order being G.O. Ms. No. 1689 which, for the purpose of this case it may be said, had the effect of restoring G.O. Ms. No. 1037. 23. On or about June 23, 1955, the respondent No. 4, who will be referred to as the respondent as he is the only contesting respondent, preferred an appeal to the Central Road Traffic Board against the decision of the Regional Transport Authority. It may be that some of the other disappointed applicants for the permit also preferred similar appeals but with them we are not concerned. The Board considered the representations of all the parties before it and made an order on June 25, 1955, setting aside the decision of the Regional Transport Authority and granting the permit to the respondent. According to the appellant, in making this order the Board followed G.O. Ms. No. 1037. The complaint of the appellant is that the Board went wrong in doing so as G.O. Ms. No. 1037 was not in force when the appellant's application was considered by the Regional Transport Authority but had been brought into force subsequently, and as the Board was only hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the appeal. He said that the Board was a quasi-judicial tribunal and an order made by it is therefore liable to be quashed by a writ of certiorari if that order discloses an error apparent on the face of it. He then said that the order of the Board of June 25, 1955, was erroneous in law as it decided the case by the terms of G.O. Ms. No. 1037, which was brought into force after the date of the decision of the Regional Transport Authority and had not been given a retrospective operation, and the Board which was hearing an appeal from the Regional Transport Authority, could only decide whether that Authority had gone wrong in the application of the provisions in force at the time of the hearing before it, namely, the provisions contained in G.O. Ms. No. 3353. He also said that such error was apparent on the face of the record as the Board in its decision stated that it was deciding the case by G.O. Ms. No. 1037. 27. It has not been contended before us that the Board is not a quasi-judicial Tribunal. It clearly is so. In view of the many decisions of this Court in similar matters it would be impossible to take a contrary view. Then again it is a principle firmly established a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the decisions of what are called courts of law. As a general rule, a court gives effect at the trial to the substantive rights of the parties existing at the date of the writ and it is for this reason that a change in the law cannot ordinarily be taken into account in appeals. Now such a consideration does not prevail in the present case. It is not said that a person when he makes an application for a permit acquires a right to have his application decided by the order under the section then in force. All that is said is that the Transport Authority must consider the applications according to the order in force at the time it hears them. If this is so, as I think it is, then the basis for saying that the appellate authority cannot consider a Government order issued since the order under appeal was made, completely disappears. Another reason given for the view that a court of appeal cannot take into consideration a new law is that, a matter of substantive right which has become res judicata cannot be upset by a subsequent general change of the law : see Re a Debtor, Ex parte Debtor [1936] Ch. 237F. Now it does not seem to me possible to say that an applicant for a permit has a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is one to the observance of which a person is entitled, that would be a law, a mistake of which would justify the issue of the writ at his instance. The whole justification for a writ to certiorari is to prevent, where no other remedy is available, a patent injustice being allowed to stand. It would be strange if a person was entitled to the observation of a rule and was held not to have a remedy for its breach. It can make no difference by what name that rule is called. I wish to read here as a salutary advice to follow, what Pollock C.B. and Martin B. said in The Mayor of Rochester v. The Queen (1858) EL. BL.. 1024, ; 120 E.R. 791F regarding the writ, Instead of being astute to discover reasons for not applying this great constitutional remedy for error and mis-government, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable. 34. The real question thus is whether the applicants for permits were entitled to the observance of the orders with which we are dealing. I think they clearly were. The orders were made under a statutory provision. That itself would make them binding. Further, the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a hierarchy of appeals had been provided for, it would perhaps have been held in that case that the authority was not a quasi-judicial authority at all. Furthermore, it was held there that no one had an inherent right to a settlement of a liquor shop. Therefore, it seems to me that that case does not help in deciding the effect of the orders issued under s. 43-A. It is interesting to note that it was said in that case referring to the writ of certiorari at p. 412 that, its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law which it was meant to administer. The words law which it was meant to administer are very significant. The Transport Authorities in the present case were certainly meant to administer the orders issued under s. 43-A. 37. There is one thing more that I wish to observe in this connection. It may be that an order which it is the bounden duty of the Transport Authority to obey may give it a certain amount of discretion, but that in my view would not make the order any the less a law. If the discretion has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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