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TMI Blog1977 (10) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... d the number of stage carriage permits to be thirty only for the route Meerut-Rohta-Sinali-Baraut. In or about the year 1971 an advertisement was made calling for the applications to fill up eight vacancies, as twenty-two permits out of the limit of thirty having been already granted were operative and in force. In October, 1971 the Regional Transport Authority granted eight permits to the respondents in one appeal or the other. Fifty applicants who were not granted permits by the Regional Transport Authority filed appeals before the State Transport Appellate Tribunal (for brevity, hereinafter, the Appellate Tribunal) under Section 64 of the Central Act. While the said appeals were pending, The U.P. Motor Vehicles Amendment Ordinance No. 9 of 1972 was promulgated on March 16, 1972. It was replaced by The Motor Vehicles (Uttar Pradesh Amendment) Act, 1972-U.P. Act No. 25 of 1972-hereinafter called the U.P. Act of 1972. By the Ordinance followed by the Act aforesaid, Section 43A was inserted in the Central Act after Section 43 authorising the State Government to issue such directions of a general character as it may consider necessary or expedient in the public interest in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsport Authority to the effect that he had not been convicted of any criminal offence under the Indian Penal Code during the preceding five years. The Appellate Tribunal, in its order, had further made it clear that the time fixed by it for the implementation of the order of grant was under no circumstances to be extended and if any of the applicants failed to comply with it, sanction of the permit in favour of the defaulting applicant was to stand automatically revoked. The appellants, however, complied with the order and fulfilled the conditions of the grant within time. But before permits could be actually issued, another round of litigation started at the instance of Rama Kant Ahluwalia and Ors. who had been granted eight permits by the Regional Transport Authority as per its Resolution passed on October 29, 1971. They challenged the order of the Appellate Tribunal by filing a writ petition in the High Court which was summarily dismissed on February 27, 1975. Three more writ petitions filed by some other operators challenging the very same order of the Appellate Tribunal were also dismissed after hearing on September 10, 1975. It may be stated here at this stage that permits we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranting the writ asked for by the appellants. 7. The Appellate Tribunal in its order dated the 19th February, 1975 following the notification of the State Government issued on March 30, 1972 had ordered the grant of permits to all the applicants. The relevant words of the order are as follows: It would, therefore, appear to be reasonable that these appellants may also be granted one permit each on this route, if they can produce a fit vehicle within the given time and they can satisfy the RTA as to their antecedents, by means of an affidavit. All the fifty appeals were allowed. The order of the Regional Transport Authority was set aside and the operative portion of the order was made in terms as mentioned below: Without disturbing the grant of permit in favour of the respondents , these 50 appellants will also be granted one regular stage carriage permit each on this route, provided they produce a fit vehicle duly registered in their own name by 31st March, 1975 and during this period they also file their own personal affidavits before the RTA to this effect that they have not been convicted of any criminal offence under I.P.C. during the last 5 years. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications for the grant of stage carriage permits were pending with any Transport Authority when the notification was issued it stood postponed until further directions were issued in this behalf by the State Government. But the scope for litigation and argument in these cases cropped up because they did not clearly and precisely fall in one line or the other. If on the special facts of these cases consideration of the applications could be taken to be pending with any Transport Authority, then they had to remain pending until (further directions were issued. But if, on the other hand, on a correct appreciation of the legal position the applications had been finally disposed of by the order of the Appellate Tribunal and they were not pending for any consideration then they did not stand postponed and permits had to be issued pursuant to the order of the Appellate Tribunal. The Regional Transport Authority had no discretion or power in the matter to dispose of the applications one way or the other. 11. To our mind the problem does not present much difficulty. The applications filed by the appellants for grant of permits to them were rejected by the Regional Transport Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now briefly deal with the additional points urged by the Solicitor General and M/s. B. Sen and Yogeshwar Prasad. For the purpose of appreciating some of those points it would suffice to refer to the provisions of U.P. Act 15 of 1976 which were almost in identical terms to the two Ordinances which had preceded it. Section 21 of this Act amended Section 43-A with retrospective effect. The effect of this was to bring into force Section 47(3) of the Central Act and with retrospective effect. Sub-section (3) of Section 21, however, provided: Any direction under Sub-section (1) may be issued with retrospective effect. Then Sub-section (5) is in the following terms: Where any direction is issued under Sub-section (1) with retrospective effect then - (a) any Transport Authority or the State Transport Appellate Tribunal may review any order passed earlier by it with a view to making it conform to such directions and may for that purpose cancel any permit already issued ; (b) Any Transport Authority may apply to the High Court for review of any order passed by such Court earlier with a view to enabling such Authority to comply with such direction. The argument o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transport Authority to do something which will run contrary to Section 47(3) or the proviso to Section 57(3) of the Central Act. It would be merely asking the Regional Transport Authority to obey the valid order of the Appellate Tribunal which has not been rendered void on any ground whatsoever. 14. Mr. A. K. Sen, learned Counsel for the appellants drew our attention to what S.A. de Smith has pointed out at page 59 of the third edition of his well-known treaty Judicial Review of Administrative Action : It may describe any duty, the discharge of which involves no element of discretion or independent judgment. Since an order of mandamus will issue to compel the performance of a ministerial act and since, moreover, wrongful refusal to carry out a ministerial duty may give rise to liability in tort, it is often of practical importance to determine whether discretion is present in the performance of a statutory function. The cases on mandamus show, however, that the presence of a minor discretionary element is not enough to deter the courts from characterising a function as ministerial. We think that the Regional Transport Authority, pursuant to the order of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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