9911796707
TMI Blog1965 (9) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... filed, the petitioner being No. 16 of the applicants, and the 4th respondent is applicants Nos. 9 and 10. After notifying these applications under Sec. 57(3) of the Act, the matter was considered by the Regional Transport Authority, Chittoor, at its meeting held on 30-11-1963, and after evaluating the respective claims granted the permit to the petitioner, on the ground that he is an existing operator with a common sector for a distance of 72 miles for three of his buses from Kuppam, and had experience as transport operator for a great length of time. The claims of the 4th respondent K. Ramachandra Naidu, was negatived, principally on the ground that he gave two different addresses to claim higher marks and that he had no sector qualification. Against these proceedings of the Road Transport Authority, Chittoor, 7 of the unsuccessful applicants, including the 4th respondent, preferred appeals to the Appellate Authority, Andhra Pradesh, Hyderabad. The Appellate Authority which considered the appeals at its meeting held on 23-11-1964, set aside the grant made in favour of the petitioner and allowed the appeal of the 4th respondent on the ground that he is a better operator than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hence it is bad in law. Further, the principle of joint responsibility under Section 64 of the Act, which is inherent in an authority having plurality of members where all the members must act, is transgressed, there being on specific sanction by the Legislative of the functioning of a smaller body. (5) I shall first deal with these two questions which are common to all the writ petitions, in considering which, it is necessary to examine the relevant provisions namely, Sections 64, 68(2)(j) of the Act and Rules 189 and 190. They read as follows:- Section 64: Any person- (a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or (b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or (c) aggrieved by the refusal to transfer the permit to the person succeeding on the death of the holder of a permit, or (d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such countersignature, or (e) aggrieved by the refusal of renewal of a permit, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 60. It may also be noted that under Section 44 of the Act, the State Government has been empowered by notification in the official gazette to constitute State Transport Authority and Road Transport Authority to exercise and discharge the powers and functions specified in that Chapter, (viz., Chapter IV). Sub-section (2) of that section reads thus: (2) A State Transport Authority or a Regional Transport Authority shall consist of a Chairman who has had judicial experience and such other officials and non-officials, not being less than two, as the State Government may think fit to appoint but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking, shall be appointed as or continue as a member of a State or Regional Transport Authority, and, if any person being a member of any such Authority acquires a financial interest in any transport under takings, he shall within four weeks of so doing, give notice in writing to the State Government of the acquisition of such interest and shall vacate office: Provided ...... Sub-section (3) provides that the State Transport Authority shall give effect to any directions is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... colleagues. On the other hand, the learned advocates for the petitioners submit that when the Legislature in Section 68(2)(j) authorises the Government to prescribe the authorities to whom appeals may be made, it confers a duty to constitute the authority and not leave it to someone to constitute it. It is further contended that unless all the members of the Appellate Authority are specified, it cannot be said that the Government has constituted the Authority. Merely to indicate the procedure for constituting that authority does not absolve it of the duty to constitute that authority itself. Under Rule 189, in fact it is the Chairman of the State Transport Authority that constitutes the appellate authority and not the Government. Mr. Babul Reddy further contended that Sections 64 and 68 contemplate only one appellate authority before whom all appeals had to be presented against orders passed by the Regional Transport Authority, mentioned in (a) to (I) of Section 64. Further, he submits that the power to constitute is by notification, and the power is not to constitute but to prescribe authorities already in existence, such as the City Police Commissioner, etc. It should prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purposes of agency that it should be so implied. Bowstead's Digest of the Law of Agency, 11th Edn. (1951) P. 69, states the rule by saying that the power of sub-delegation will be implied in a situation. Where the authority conferred is of such a nature as to necessitate its execution wholly or in part by means of a deputy or sub-agent. Sometimes the distinction between 'purely an administrative power' and 'legislative' or a 'quasi judicial power' would lead to certain difficulties. But as indicated by Dixon, J., in Yats v. Vegetable Seeds Committee, (1945) 72 Com. WLR 37, this distinction may not be as important in relation to exercise of statutory powers as it was previously thought to have been. (9) The basis on which the principle of delegation rests is that a person who wishes to act through another confers a power on that other, who otherwise would have to do it himself. This does not however imply that the person so delegating parts with his power or his authority to another so as to denude himself of his rights, or to totally abdicate that power in favour of the other. Delegation of power in other words, could always be abrogated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity named in the statute to use its own peculiar aptitude and forbids it to entrust its statutory discretion to another who may be less apt than it, unless it is clear from the circumstances that some reason other than its aptitude dictated the naming of it to exercise the discretion. Because, however, he courts will readily mould the literal words of the statute to such construction as will be best achieve its object; because they will, recognizing the facts of modern government, readily imply in an authority such powers as it would normally be expected to possess; because the presumption of deliberate selection, strong when applied to the case of a principal who appoints an agent or a testator who selects a trustee, wears thin when applied to a statute which authorizes some governmental authority, sometimes with a fictitious name such as 'Governor-in-council' or 'Minister of Justice', to exercise a discretion which everyone, even the legislature, knows will in fact be exercised by an unknown underling in the employment of the authority, the prima facie rule of delegatus non potest delegare will readily given way, like the principles on which it rests to slight in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not delegate their functions, at any rate they could ratify the actions of the port manager was also repelled, for if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he has done. The effect of ratification is to make it equal to a prior command; but just as a prior command, in the shape of a delegation, would be useless, so also is a ratification. The other two Judges also delivered concurrent judgments. In Vine v. National Dock Labour Board, (1957) AC 488 the decision of the Court of Appeal that action taken by a delegated authority when there was no power to delegate went to the root of the jurisdiction and the circumstances entitled the Court, in its discretion, to grant a declaration, was approved. Lord Somervell of Harrow observed: In deciding whether a 'person' has power to delegate one has to consider the nature of the duty and the character of the person. Judicial authority normally cannot, of course, be delegated, though no one doubted in Arlidge's case, (1915) AC 120 at p. 512 that the Local Government Board, which consisted of the President, the Lord President of the Council, the Secreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be named by their executive officer. In other words, they delegated to be executive officer the task of deciding the land which was to be the subject of the notice to he served. It was held that the committee could not delegate that which the Minister has to decide and which he was power to delegate to the committee to decide for him. Lord Gadded, C. J. Observed: If he has delegated, as he has, his power of making decisions to the executive committee, it is the executive committee that must make the decision and, on the ordinary principle of delegates non potent delegate, they cannot delegate their power to some other person or body. The contention of the appellants that they are entitled to have the decision of the executive committee and of no one else on this matter, was accepted. In Attorney General of Canada v. Shirley Kathleen Brent, 1956 SCR (Can) 318 the question was whether a citizen of the United States of American and did not have a Canadian domicile can be ordered to be deported by a Special Immigration Officer as unsuitable under Regulation 20 (4) made by the Governor in council exercises of the powers conferred by section 61 of the Immigration Act, which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction whether the content of the powers delegated has within it the further power to re-delegated that power. In the present case the Government has been given the power to prescribe by rules not only the authority that should hear the appeals, but also the time withiin which and the manner in which the appeals should be made. The power to hear appeals is a judicial power and can only be conferred by a statute, in as much as, the right of appeal is a creature of statute. Section 68, which confers powers on State Governments to make rules for the purpose of carrying into effect the provisions of Chapter IV, and in particular under Section 68(2)(j), confers power to make rules with respect to the authorities to whom, the time within which and the manner in which appeals may be made, so that section 64 read with Section 68(2)(j) confers on the Government power to make rules prescribing any one authority or seveal authorities, if it so chooses to hear appeals. If may not, therefore, be said, as has been contended, that only one authority has to be prescribed to hear appeals. The power to prescribe the authorites is wide enough, not only to specify by rules the persons who constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bundantly clear that the legislature left it to the Government to prescribe the appellate authority and the manner in which that authority should be constituted and to make rules for the conduct of the business of such body. Clauses (b) and (j) specifically vest such power in the Government. That being the position, it is well within the rule-making power of the Government to make a rule fixing the quorum and also authorising the Chairman to conduct the meeting without the quorum. It may be stated that rule 144 not only provided for a quorum of 2; it also provided that if within 15 minutes after the time scheduled for the commencement of the meeting no member turns up, the Chairman may proceed to conduct the meeting without the quorum. There also Mr. Kuppuswamy contended that reading section 44 in the light of the notification under rule 147, it was the full Board that could hear the appeal and the Chairman alone by himself had no jurisdiction to perform such a function. But that argument was not accepted. In Atherton West and Co. Ltd., Kanpur v. Kanpur Suit Mill Mazdoor Union, , their Lordships of the Supreme Court had also taken a similar view on rules similar to rule 144 (si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confer on the Government power to constitute the appellate authority, but only to make a rule under which that authority has to be constituted. There is in my view a distinction in the nature of these two powers. The first one imposes an obligation on the government to specify the members constituting the authority, in which case, that power could not be delegated to somebody else, while in the latter, the government are merely to make a rule whereunder such authority could be constituted. By contrast, Section 44 enjoins on the State Government to constitute for the State a State Transport Authority and Regional Transport Authority by notification in the official gazette. The government has to constitute the State or Regional Transport Authority by specifying the members and could not leave it to some one else to do, while no such obligation has been imposed u on it to constitute the appellate authority under section 64 read with section 68 (2) (j). The Legislature has merely conferred power on the government to indicate by subordinate legislation which , if made within the ambit of the power, will be treated as if enacted by the Legislature itself In the famous Delhi Laws case, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the power to do the act. Mukherea, J., at P. 652 (of SCJ): (at P. 399, 400 of AIR ) stated thus:- ..the Privy Council have repeatedly pointed out that when the Legislature retains its dominant power intact and can whenever it pleases destroy or take the matter directly into its own hands, it has not parted with its own legislative power. They have also pointed out that the act of the subordinate authority does not possess the true legislative attribute, if the efficacy of the act done by it is not derived from the subordinate authority but from the Legislature by which the subordinate authority was entrusted with the power to do the act. Mukherjea, J., at P. 652 (of SCJ): (at P. 399, 400 of AIR ) stated thus:- Subordinate legislation, it is not disputed, must operate under the control of the Legislature from which it derives its authority, and on the continuing operation of which, its capacity to function rests. As was said by Dixon, J. (In Victoria Stevedoring and General Contracting Co. V. Dignan, 46 C. L. R. 73 at p. 102) 'a subordinate legislation cannot have the independent and unqualified authority which is an attribute of true legislate power'........ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Patanjali Sastry, J., also was of the same view, Mahajan, J., however dissented and was of the view that in the absence of express powers of delegation allowed by the Constitution the Parliament has no power to delegate its essential legislative functions to others, whether State Legislatures or executive authorities, except, of course, functions, which really in their true nature are ministerial. (15) It is therefore clear that subordinate legislation within the limits specified in the above case is not a delegation of legislative power as has been sought to be contended before me. Where particularly under Section 68(2)(j) rules could be prescribed for plurality of authorities to be constituted for hearing appeals - such would be necessary in this case for different areas, the Telangana and the Andhra - the members who constitute such authorities could be specified by the Chairman from amongst a designated body of persons. The rule itself prescribed the authority with the power conferred on the Chairman to choose any two members of the designated body, and when made, it is part of the law, there being nothing in the Act itself to restrict the conferment of such power. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Maula Bux v. Appellate Tribuynal of State Transport Authority Jaipur, , a Bench of the Rajasthan High Court was considering the constitutionality of the Appellate Authority under Rule 108(a) of the Rajasthan Motor Vehicles Rules, namely, that the authority to decide an appeal against the orders of a Regional Transport Authority under Clauses (a), (b), (c), (d) (e) and (f) of Section 64 of the Act shall be the Chairman and two members of the State Transport Authority from time to time appointed by the Government. That rule was amended whereby the Chairman and two members of the State Transport Authority, have been replaced by Transport Minister of the Government of Rajasthan as the Chairman, and the Legal Remebancer to the Government of Rajasthan and the Director of Transport for the State of Rajasthan as members. There was no mention in the draft amendment of the Transport Minister being the Chairman. It was contended that the Government had no authority to make the rule in the language different from that of the draft unless some objection had been received by it and bound to make the rules strictly is conformity with the drat. The objections was held to be without force. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hop or not. In the appeal of respondent 4 also, neither he has stated that he has a workshop did he say that the petitioner has not; nor from the order of the appellate authority does it appear from the argument recorded by it that respondent 4 had a workshop. It is only in revision when it came before the Government it appears from the record that a report was called for from the Regional Transport Authority, which, it is alleged by the petitioner, was behind the back of the petitioner, and on a consideration of that report, it was held that no workshop was owned by the petitioner. Nr. Chowdary therefore complains that no opportunity was given to him to contest that report. It is further submitted that respondent 4 made two identical applications, one as Ramachandra Naidu and the other as Ramachandra Motor Bus Service and in these applications he has given different addresses, one of Tirupati and the other of Chittoor. It is also pointed out from the record that in both the applications respondent-4 mentioned all the number of buses, both in his individual name as well as in the partnership of Ramachandra Motor Bus Service. It is however admitted that both the 4th Respondent and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
