Abdui, Gafoor Vs. State of Mysore
 INSC 151 (12 April 1961)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 1556 1962 SCR (1) 909
CITATOR INFO :
R 1962 SC1135 (6) R 1962 SC1183 (16) RF 1963
SC 640 (11) RF 1971 SC1662 (11) F 1971 SC1986 (10) R 1972 SC1674 (8,9) R 1974
Motor Transport--Scheme Published and
approved--Permits-Application for by State Transport Undertaking--Publication
of application and notice of date for making representation by other Transport
Services, if necessary--Motor Vehicles Act, 1939 (IV of 1939), ss. 68-C, 68-F
(1), Ch. IV-A.
After a scheme 'Was published by the Mysore
Transport Undertaking under s. 68-C of the Motor Vehicles Act, 1939, and
approved by the State Government the State Transport Undertaking made
applications for permits under s. 68-F(1) of the Act to the Regional Transport
Authority but before the permits were granted the second respondent made an
application for a Writ of Certiorari prohibiting the Regional Transport
Authority from dealing with the second respondent's application for permit
unless and until they were duly published and notice was given to him for
making representations. The contention on his behalf was that the publication
of the applications with notice of the (late for submitting the representations
was necessary under s. 57(3) Ch. IV of the Act and that lie was entitled to
notice as the Regional Transport Authority acted in a quasi-judicial capacity
while dealing with applications for permits.
Held, that when a scheme. prepared and
published under s. 68-C has been approved and in application has been made in
pursuance of the scheme and in the proper manner as specified in Ch. IV nothing
more remains to be decided by the Regional 910 Transport Authority and it has
no option to refuse the grant of the permit. The nature of the matter dealt
under ís. 68F(1) is such as does not attract the provisions of S. 57(3) which
lays down certain duties on the Regional Transport Authority when it considers
an application for a permit.
The provisions of S. 57(3) have nothing to do
with the matters dealt with by s. 68-F(1).
Srinivasa Reddy v. State of Mysore,  2
S.C.R. 130, referred to.
When taking action under, s. 68-F(1) the
Regional Transport Authority does not exercise any quasi-judicial function and
acts wholly in a ministerial capacity.
ORIGINAL JURISDICTION: Petition No. 109 of
Writ Petition under Art. 32 of the
Constitution of India for enforcement of the Fundamental Rights.
M. O. Setalvad, Attorney-General of India, B.
R. L. Iyengar and K. P. Bhat, for the petitioner.
A. V. Viswanatha Sastri, R. Gopalakrishnan
and T. M. Sen, for the respondents.
1961. April 12. The Judgment of the Court was
delivered by DAS GUPTA, J.--The petitioner, who is the proprietor of the
Shaheen Motor Service, used to ply a motor bus for hire on the route Archalli
to Saravanabelgola in Hassan District in the State of Mysore. A scheme under s.
68-C of the Motor Vehicles Act of 1939 having been published by the Mysore
Transport Undertaking, the petitioner as one of the persons affected thereby
filed objections to the scheme before the State Government under s. 68-D(1) of
the Act. The State Government however after considering the objections a,-id
hearing the petitioner approved the scheme, subject to a slight modification
with which we arc not concerned. This approval was given on December 22, 1959.
In pursuance of this approved scheme the State Transport Undertaking-the 2nd
respondent before us--made applications for permits but before the Regional
Transport Authority could issue such permits the present petition was filed
praying, in the first place, for a writ of certiorari to quash the scheme and
some consequential directions, and secondly for a wait of 911
"prohibition" to the Regional Transport Authority, Hassan District,
who is the third respondent before us "to refrain from dealing with the
applications for permit made by the 2nd respondent unless and until they are
duly published and notice thereof is given to the petitioner and he is allowed
to make his representation thereon regarding their compliance or otherwise with
the conditions of s. 68-F(1) of Chapter IV-A. After learned counsel for the
petitioner had been heard, this Court by its order dated March 21, 1961,
granted leave to the petitioner to amend the writ petition so as to confine it
to the second prayer only and directed a rule to issue only in respect of this
The only question with which we are therefore
now concerned is whether a writ should issue prohibiting, the Regional
Transport Authority, Hassan District, from dealing with the applications for
permits made by the State Transport Undertaking "unless and until they are
duly published and notice thereof is given to the petitioner and he is allowed
to make his representations thereon".
The petitioners case as regards this prayer
is that under the law no permit can be granted to the State Transport
Undertaking until the applications for permit have been duly published and
notice has been given to the petitioner of those applications. In support of
this proposition learned counsel advanced two arguments-firstly, that s. 57(3)
in Chapter IV of the Act, requires such prior publication with notice of the
date before which representations in connection with the application may be
submitted and that in consequence of s. 68-B of Chapter IV-A the above
provisions of s. 57(3) of Chapter IV have to be followed. The second argument
is that the Regional Transport Authority acts in a quasi-judicial capacity when
dealing with applications for permits made under s. 68-F and so the petitioner
who will be affected by the issue of the permits is entitled to notice.
Section 68-B on which reliance has been
placed provides inter alia that the provisions of Chapter IV-A 912 shall have
effect "notwithstanding anything inconsistent therewith contained in
Chapter IV". It says nothing positive as regards any of the provisions of
Chapter IV being applicable to matters under Chapter IV-A but provides
negatively that if any question arises as regards any provisions of the Act in
Chapter IV-A and there is difficulty in applying it on the ground that there is
conflict between it and some provisions of Chapter IV, the provisions of
Chapter IV-A will prevail. Mr. Iyengar has argued that it is implicit in this
provision that if there is no such difficulty all the provisions of Chapter IV
will apply to matters dealt with under Chapter IV-A. This argument, in our
opinion, is fallacious. All that s. 68-B pre-supposes is that there are some
provisions in Chapter IV which may apply to matters under Chapter IV-A; on that
assumption it proceeds to say that if on a matter to which provisions of
Chapter IV would prima facie apply there is a provision in Chapter IV-A also
which appears applicable the provision in Chapter IV-A will prevail to the
extent of its inconsistency with the corresponding provision in Chapter IV. As
to what provisions in Chapter IV will apply or not s. 68-B says nothing and
provides no guidance either expressly or by implication. To find out whether a
particular provision in Chapter IV (not being inconsistent with any provisions
in Chap. IV-A) will apply or not to a matter under Chapter IV-A, we have to
examine the matter in question and then decide whether it is of such a nature
that it attracts that particular provision of Chapter IV.
What then is the matter dealt with under s.
68-F(1) with which we are concerned in the present case? Section 68-F(1) comes
into operation when a scheme has already been approved by the State Government
under s. 68-D(2). In order that the approved scheme may be implemented the
State Transport Undertaking which is to run and operate. the Transport Service
under the scheme must have a permit from the Regional Transport Authority.
Section 68-F(1) provides that the State Transport Undertaking will have to
apply for a permit (i) in pursuance of the approved 913 scheme and (ii) in the
manner specified in Chapter IV. Once that is done, the sub-section proceeds to
say "'A Regional Transport Authority shall issue such permit to the State
Transport Undertaking", and this "notwithstanding anything to the
contrary contained in Chapter IV." It appears clear to us that the
provisions of s. 57(3) have nothing to do with these matters dealt with by s.
68-F(1). Section 57(3) lays on the Regional Transport Authority certain duties
when it considers an application for a permit. These conditions are (1) to make
the application available for inspection at the office of the Authority, (2) to
publish the application or the substance thereof in the prescribed manner
together with a notice of the date before which representations in connection
therewith may be submitted and the date and the time and place at which the
application and any representations, received will be considered. Under s.
68-F(1) as already mentioned the Regional Transport Authority has no option to
refuse the grant of the permit provided it has been made in pursuance of the
approved scheme and in the manner mentioned in Chap. IV. The duty of the
Regional Transport Authority on receipt of the application from the State
Transport Undertaking for a permit is therefore to examine the application for
itself to see whether it is in pursuance of an approved scheme and secondly
whether it has been made in the manner laid down in Chapter IV. This is a duty
which the Regional Transport Authority has to perform for itself and there is
no question of its asking for assistance from the public or existing permit
holders for Transport Services on the route. Neither the public in general nor
the permit holder has any part to play in this matter.
The provisions of s. 57(3) for making the
application made under Chapter IV, available for inspection, for publishing the
application or a substance thereof with a notice of the date by which the
representations may be submitted and the date, time and place when the
representations will be considered are required to enable the Regional
Transport Authority to come to a 115 914 correct conclusion as to whether the
application should be granted or not. An application not made in the manner
laid down in Chapter IV will not be considered by the Regional Transport
Authority at all. But the mere fact that it has been made in the proper manner will
not entitle the applicant to a permit. it is the duty of the Regional Transport
Authority to decide on a consideration of all relevant matters whether the
application should be allowed.
Other operators and even the public have a
legal right to make representations to persuade the Authority not to grant the
permit on the merits of the case. It is for this reason that there was
necessity to make the provisions in subsection 3 of s. 57 so that the Regional
Transport Authority may receive every assistance in coming to a proper
conclusion. When however a scheme prepared and published under s. 68-C has been
approved and an application has been made in pursuance of the scheme and in the
proper manner as specified in Chapter IV nothing more remains to be decided by
the Regional Transport Authority. The nature of the matter dealt with under s.
68-F(1) is thus such as does not and cannot attract any of the provisions of s.
It may be mentioned here that in Srinivasa
Reddy. & Or.3. v. The State of Mysore & Ors. (1) a question was raised
whether s. 57(3) applied or not to an application made under s. 68F(1). The
Court considered it unnecessary then to go into the matter as on the facts of
that case it was found that the application had not been made in the manner
provided in Chapter IV and was actually in breach of s. 57(2) of the Act and so
no permit could be issued on such an application.
The provision in s. 57(2) which was
applicable to applications under s. 68-F is that an application for a permit shall
be made not less than six weeks before the date on which it is desired that the
permit shall take effect or if the Regional Transport Authority appoints dates
for the receipt of such application on such dates. In that case the Court held
that this provision in s. 57(2) is in reality a manner of making the (1) 
2 S. C.R. 130.
915 application and consequently it applied
to applications made under s. 68-F(1). The provisions of s. 57(3) cannot
however be said to have anything to do with the manner of making the
application and the nature of the matter dealt with under s. 68-F(1) is such
that provisions of s. 57(3) are not attracted, The next argument is that the
Regional Transport Authority functions as a quasi-judicial authority when
dealing with an application made by the State Transport Undertaking under s. 68-F(1).
It is said that as under s. 68-F(2) the Regional Transport Authority may refuse
to entertain an application for renewal of any other permit or cancel an
existing permit or modify in certain matters the terms of an existing permit,
for the purpose of giving effect to the approved scheme there is a lis between
the existing permit holders and the State Transport Undertaking when an
application under s. 68-F(1) is dealt with.
It appears to us that when deciding what
action to take under s. 68-F(2) the authority is tied down by the terms and
conditions of the approved scheme and his duty is merely to do what is
necessary to give effect to the provisions of the scheme. , The refusal to entertain
applications for renewal of permits or cancellation of permits or modification
of terms of existing permits really flow from the scheme. The duty is therefore
merely mechanical; and it will be incorrect to say that there is in these
matters any lis between the existing operators and the State Transport
Undertaking which is to be decided by the Regional Transport Authority. There
is no justification therefore for saving that when taking action under. 68-F(2)
the regional Transport Authority is exercising a quasi-judicial function.
Apart from this it has to be pointed out that
action under s. 68-F(2) is really independent of the issue of the permits under
s. 68-F(1). Once the scheme has been approved, action under s. 68-F(1) flows
from it and at the same time action under s. 68-F(2) flows from the same
scheme. The argument that the Regional Transport Authority should be held to be
exercising quasi-judicial function in dealing with applications for permits
under s. 68-F(1) 916 because of the action it may take under s. 68-F(2)
It was next said that when the Regional
Transport Authority issues the permit it can attach to the permit conditions
under s. 48(3) of the Act. Section 48(3) authorises the Regional, Transport
Authority if it decides to grant a stage carriage permit, to attach to the
permit any of the conditions specified in the subsection. It has to be noticed
that s. 68-F(1) does not speak of the "grant" of a permit but
provides that the Regional Transport Authority shall "issue" a
permit. In any case, if the Regional Transport Authority has to decide what
conditions to attach to such a permit, it is not possible to say that it is
then exercising a quasi-judicial function. For, in deciding that matter the
Regional Transport Authority is to have regard to the interests of the public
but there is no question because of that, of any lis between the State
Transport Undertaking on the one hand and the public on the other.
In our opinion, the Regional Transport
Authority acts wholly in a ministerial capacity while dealing with an
application of the State Transport Undertaking under s. 68-F(1). The fact that
on other occasions and in other matters the Regional Transport Authority has
quasi-judicial functions to perform cannot make its function under, s. 68-F(1)
a quasi-judicial function.
Our conclusion therefore is that the
petitioner's contention that no permit can be granted to the State Transport
Undertaking until the applications for permit have been duly published and
notices have been given to the petitioner of these applications is unsound
Consequently, the petitioner is not entitled to any relief.
The petition is dismissed with costs.