K. M. Shanmugam Vs. The S. R. V. S.
(P) Ltd. & Ors  INSC 19 (6 February 1963)
06/02/1963 SUBBARAO, K.
IMAM, SYED JAFFER DAYAL, RAGHUBAR MUDHOLKAR,
CITATION: 1963 AIR 1626 1964 SCR (1) 809
D 1964 SC 477 (15) R 1989 SC2138 (99)
Stage carriage permit--Marking system--Error
apparent on the face of the record--Motor Vehicles Act, 1939 (4 of 1939), ss.
43A, 47--Constitution of India Art. 226.
On applications for permits made to it the
Regional Transport Authority, applying the marking system prescribed by the
Government order issued under s. 43A of the Motor Vehicles Act, granted the
permit to the appellant. On appeal by the first respondent, the State Transport
Appellate Tribunal recast the marks but in doing so did not allot any mark to
the first respondent under the head of "residence or place of
business" and thereby treating the appellant and the first respondent as
equal, gave the appellant the further advantage of four marks under the head
"viable unit". The first respondent challenged the order of the
Appellate Tribunal before the High Court under Art. 226 on the ground that the
Appellate Tribunal had failed to allot him any mark in respect of his admitted
residential qualification and had thereby committed a breach of s. 47 (1) (a)
and (c) of the Motor Vehicles Act. This contention was accepted by the learned
single judge of the High Court who quashed the order of the Appellate Tribunal
and directed it to proceed according to law. On appeal the Division Bench
confirmed the issue of the writ. On appeal by special leave by the appellant it
was contended in this Court that the High Court has no jurisdiction to issue a
writ of certiorari, as the error, if any, was one of fact and that the
directions issued by the Government under s. 43A of the Motor Vehicles Act
being only administrative in character, order made in breach thereof did not
give rise to an error of law which could be the subject matter of a writ.
Held, that the question whether or not there
was such an error apparent on the face of the record as to enable the High
Court to interfere under Art. 226 of the Constitution was one to be determined
in each case and no particular test can or need be laid down as a general rule.
810 Hari Vishnu Kamath v. Syed Ahmad Ishaque,
 1 S. C..
R.. 1104, Nagendra Nath Bora v. Commissioner
of Hills Division and Appeals, Assam  S. C. R. 1240, Satyanarayan v.
Mallikarjun,  1 S. C. R. 890, Shri Ambica Mills Co. v. S. B. Bhatt,
 3 S.C. R. 220, Provincial Transport Service v. State Industrial Court
 3 S. C.
R. 650, Batuk Vyas v. Surat Municipality, A.
I. R. 1953 Bom.
133 and M/s. Raman & Raman Ltd. v. The
State of Madras,  Supp. 2 S. C. R. 227, referred to.
Held, further, that though the directions
issued under s. 43A of the Act were administrative, they were intended to
facilitate an objective, judgment of the considerations laid down in s. 47 of
the Motor Vehicles Act and if applying the directions to a given case result in
the breach of s. 47, namely, ignoring a relevant consideration, it must give
rise to a manifest error of law and furnish a ground for interference under
Art. 226 of the Constitution.
M/s. Raman & Baman Ltd. v. State of
Madras  Supp. 2 S. C. R. 227, Abdulla Rowther v. State Transport
Appellate Tribunal, Madras, A. 1. R. 1959 S. C. R. 896, Ayyasswani Gounder v.
M/s. Soudambigai Motor Service C. A. No. 198 of 1962 decided on 17-9-62 and
Sankara Ayyar v. Marayanaswami Naidu, C. A. No. 213 of 1960 decided on
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 697 of 1962.
Appeal by special leave from the judgment and
order dated March 21, 1962, of the Madras High Court in Writ Appeal No. 154 of
B. Sen, Ravinder Narain, O. C. Mathur and
J.B. Dadachanji, for the appellant.
A. V. Visvanatha Sastri, and R.
Gopalakrishnan, for respondent 1.
A. Ranganadham Chetty and A. V. Rangam, for
respondent Nos. 2 and 3.
1963. February 6. The judgment of the Court
was delivered by 811 SUBBA RAO J.-This appeal by special leave is directed
against the judgment of a division Bench of the High Court of judicature for
Madras confirming that a single judge of that Court allowing. the petition
filed by the respondent under Art. 226 of the constitution and quashing the
order made by the State Transport Appellate Tribunal granting a stage carriage
permit to the appellant for the route Tanjore-Mannargudi via Vaduvoor.
The facts relevant to the question raised may
be briefly stated. The Regional Transport Authority, Tanjore, called for
applications in respect of the issuing of a stage carriage permit for the route
Tanjore-Mannargudi via Vaduvoor. 11 persons applied for the permit. The
Regional Transport Authority, adopting the marking system prescribed in' G.O.
Ms. No. 1298 (Home) dated April 28,1956, awarded marks to different applicants
: the appellant of the highest number of Marks, viz., 7, and the first
respondent got only 4 1/4 marks, with the result the appellant was preferred to
the respondent and a permit was issued to him. It is not necessary to notice
the marks secured by the other applicants before the Regional Transport
Authority, for they are not before us. Total of the said marks secured by each
of the said two parties was arrived at by gadding the marks given under the
Viable WorkResiExperiSpecial ToUnit shop
dence ence circumstal tances.
1 2 3 4 5 K.M.S 4 1 1 1/2 1/4 7 S.R.V.S. 1 1
1 1 1/4 4 It would be seen from the said table of marks that if the 4 marks secured
by the appellant under the 812 first column "Viable Unit" were
excluded from his total, he would have got only a total of 3 marks under the
remaining heads and the first respondent would have got a total of 41 marks
under the said heads. Under the said G.O., as interpreted by this Court, the
marks under the first column, i.e., those given under the head "Viable
Unit", would be counted only if other things were equal; that is to say,
if the total number of marks obtained by the said two applicants under Cols.2
to 5 were equal. It is, therefore, obvious that on the marks given the Regional
Transport Authority went wrongin issuing, a permit in favour of the appellant,
as he should not have taken into consideration the 4 marks given under the 1st
Column since the total marks secured by him under Cols. 2 to 5 were less than
those secured by the first respondent. Aggrieved by the said order, the first
respondent preferred an appeal to the State Transport Appellate Tribunal,
hereinafter called the Appellate Tribunal. The said Appellate Tribunal recast
the marks in respect of the said two .parties in the following manner:
Viable Work Resi Experi Special To Unit shop
dence ence circumstal tances 1 2 3 4 5 K.M.S. 4 2 1 3/4 1/4 8 S.R.V.S. 2 1 1 4
It would be seen from the marks given by the Appellate Tribunal that the total
of the marks secured by the appellant under Cols. 2 to 5 is equal to that
secured by the first respondent under the said columns, each of them securing 4
marks. It was contended before the Appellate Tribunal that the first respondent
was entitled to some mark under the column "Residence or place of
business" on the ground 813 that it had the places of business at Tanjore
and Mannargudi and that the Regional Transport Authority had given one mark to
the first respondent under the said column ; but the Appellate Tribunal
rejected that contention on the ground that the first respondent had a branch
office at Kumbakonam and, therefore, the office at Tanjore or Mannargudi could
not be treated as a branch office. Aggrieved by that order, the first
respondent filed a petition before the High Court under Art. 226 of the
Constitution for setting aside that order. Ramachandra lyer, J., who heard the
said application allowed it. The main reason given by the learned judge for
allowing the petition was that the Appellate Tribunal omitted to give any mark
in respect of residential qualification, which amounted to refusal to take into
consideration the admitted fact, namely, the existence of a workshop at
Mannargudi and therefore, it amounted to a breach of s. 47 (1) (a) and (c) of
the Motor Vehicles Act.
The same idea was expressed by the learned
judge in a different way thus:
It............ in regard to residential
qualification, it (the Appellate Tribunal) declined to consider whether the
office workshop at Mannargudi are sufficient to entitle the petitioner to any
marks under head for the mere reason that it was a branch of a branch
office." He held that the said refusal was an error apparent on the face
of the record; and he accordingly quashed the order and at the same time
indicated that the result 'was that the State Transport Appellate Tribunal
would have to dispose of the appeal afresh. The Letters Patent appeal filed by
the appellant was heard by a division Bench consisting of Anantanarayanan and
Venkatadri, jj. The learned judges dismissed the appeal and the reason of their
decision is found in the following remarks "In essence, the judgment
really proceeds on the basis that with regard to the claim of the 814
respondent to some valuation under Col. 3, arising from the existence of an
alleged branch office at Mannargudi there has been no judicial disposal of the
claim." They also observed "The Tribunal is, of course, at liberty to
adopt its own criteria for the valuation under Col. 2, provided they are
consistently applied, and based upon some principle." In dismissing the
appeal the learned judges concluded "............ we desire to make it
clear that we are not in any way fettering the discretion of the State
Transport Appellate Tribunal to arrive at its own conclusion on the claims of
the two parties irrespective of any observations that might have been
incidentally made by this Court on those claims." The appellant has
preferred the present appeal by special leave against the said order.
It will be seen from the aforesaid narration
of facts that the High Court issued the writ as it was satisfied that there was
a clear error apparent on the face of the record, namely, that the Appellate
Tribunal refused to take into consideration the existence of the branch office
at Mannargudi for awarding marks under the head "residence" on the
ground that there was another office of the first respondent at Kumbakonam.
While it gave marks to the appellant for his residence, it refused to give
marks to the first respondent for its office on the aforesaid ground.
Mr. Sen, learned counsel for the appellant,
raised before us the following points (1) The. Court has no jurisdiction to
issue a writ of certiorari under 816 Art. 226 of the Constitution to quash an
order of a Tribunal on the ground that there is an apparent error of fact on
the face or the record, however gross it may be, and that, in the instant case,
if there was an error, it was only one of fact; (2) this Court has held that
directions given under s. 43 of the Motor Vehicles Act are only administrative
in character and that an order made by a Tribunal in breach thereof does not
confer a right on a party affected and, therefore, the Appellate Tribunal's
order made in derogation of the said directions could not be a subject-matter
of a writ.
The argument of Mr. Viswanatha Sastri,
learned counsel for the first respondent, may be summarized thus :
The petitioner (appellant herein) -has a
fundamental right to carry on business in transport. The Motor Vehicles Act is
a law imposing reasonable restrictions in public interest on such right. The
Appellate Tribunal can decide, on the material placed before it, whether public
interest would be better served if the permit was given to the appellant or the
first respondent within the meaning of s. 47 of the said Act. The Government,
in exercise its powers under s. 43 of the said Act, gave administrative
directions embodying some principles for enabling the Tribunal to come to a
conclusion on the said point. The Tribunal had jurisdiction to decide the said
question on the basis of the principles so laid down or dehors them. In either
view, it only decides the said question. The first respondent raised before the
Tribunal that public interest would be better served if a permit was issued to
it as it had a well equipped branch office at Mannargudi. The said question was
relevant. in an inquiry under s. 47 of the said Act, whether the Tribunal
followed the instructions given by the Government or ignored them. In coming to
a conclusion on the said 816 question, the Tribunal made a clear error of law
inasmuch as it held that in the case of the first respondent, as it had a
branch at Kumbakonam, its other branch at Mannargudi should be ignored. This,
the learned counsel contends, is an error apparent on the face of the record.
He further contends that the scope of an inquiry under Art. 226 'is wide and
that it enables the court to issue an appropriate direction even in a case of
an error of fact apparent on the face of the record.
It is not necessary to express our opinion on
the wider question in regard to the scope and amplitude of Art. 226 of the
Constitution, namely, whether the jurisdiction of the High Court under the said
Article to quash the orders of Administrative tribunals is confined only to
circumstances under which the High Court of England can issue a writ of
certiorari or is much Wider than the said power, for this appeal can
satisfactorily and effectively be disposed of within the narrow limits of the
ambit of the English Court's jurisdiction to issue a writ of certiorari as
understood by this Court. If it was necessary to tackle the larger question, we
would have referred the matter to a Bench of 5 judges as it involved a
substantial question of law as to the interpretation of the Constitution; and
under Art. 145 thereof such a question can be heard only by a Bench of at least
5 judges. In the circumstances a reference to the decisions of this Court cited
at the Bar, which are alleged to have expressed conflicting views thereon, is
not called for. We shall therefore, confine ourselves to the narrow question.
Adverting to the scope of a writ of
certiorari in common law, this Court, in Hari Vishnu Kamath v. Syed Ahmed
Ishaque(1) laid down the following propositions:
(1) Certiorari will be issued for correcting
errors of jurisdiction, as when an inferior (1)  1 S.C.R. 1104,1121,
817 Court or Tribunal acts without
jurisdiction or in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the
Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction,
as when it decides without giving an opportunity to the parties to be heard, or
violates the principles of natural justice.
(3) The Court issuing a writ of certiorari
acts in exercise of a supervisory and not appellate jurisdiction. One
consequence of this is that the Court will not review findings of fact reached
by the inferior Court or Tribunal, even if they be erroneous.
(4) An error in the decision or determination
itself may also be amenable to a writ of certiorari but it must be a manifest
error apparent on the face of the proceedings e.g., when it is based on clear
ignorance or disregard of the provisions of law.
This view was followed in Nagendra Nath Bora,
v. The Commissioner Hills Division and Appeals, Assam (1), Satyanarayan v.
Mallikarjun (2) Shri Ambica Mills Co. v. S. B. Bhutt (3) and in Provincial
Transport Services v. State Industrial Court, Nagpur (4 ). But the more
difficult question is, what is the precise meaning of the expression
"'manifest error Apparent on the face of the proceedings ?"
Venkatarama Ayyar, J., attempted to define the said expression in Hari Vishnu
Kamath's Case (5) thus "Mr. Pathak for the first respondent contended on
the strength of certain observations of Chagla, C. J., in Botuk K. Vyas v.
Surat Municipality (1), that no error could be said to be apparent on the face
of the record if it was (1)  S.C.R. 1240. (2)  1 S.C.R.
8140 (3)  3 S.C.R. 920. (4)  3
(5)  1 S.C.R. 1104,1121, 1123 (6)
A.I.R. 1953 Bom. 133.
818 not self evident, and if it required an
examination or argument to establish it. This test might afford a satisfactory
basis for decision in the majority of cases. But there must be cases in which
even this test might break down, because judicial opinions also differ, and an
error that might be considered by one judge as self-evident might not be so
considered by another. The fact is that what is an error apparent on the face
of the record cannot be defined precisely or exhaustively, there being an
element of indefiniteness inherent in its very nature, and it must be left to
be determined judicially on the facts of each case." It would be seen from
the said remarks that the learned judge could not lay down an objective test,
for the concept necessarily involves a subjective element. Sinha,J., as he then
was speaking for the Court in Nagendra Nath Bora's Case (1), attempted to
elucidate the point further and proceeded to observe at p. 1269-70 thus :
"'It is clear from an examination of the
authorities of this Court as also of the courts in England, that one of the
grounds on which the jurisdiction of the High Court on certiorari may be
invoked is an error of law apparent on the face of the record and every error
either of law or fact, which can be corrected by a superior court, in exercise
of its statutory powers as a court of appeal or revision." This decision
assumes that the scope of a. writ in the nature of certiorari or an order or
direction to set aside the order of an inferior tribunal under Art. 226 of the
Constitution is the same as that of a common law writ of certiorari in England
we do not express any opinion on this in this case. This decision practically
accepts the opinion expressed (1)  S.C.R. 1240.
819 by this Court in Hari Vishnu Kamath's
Case (1). The only addition it introduces is the anti-thesis it made between
"'error of law and error of fact" and "error of law apparent on
the face of the record." But the question still remains in each case
whether an error is one of law or of fact and that falls to be decided on the
facts of each case. Das Gupta, J., makes yet another attempt to define the expression
when he says in Satyanarayan v. Mallikarjun (2), at p. 141 thus :
"An error which has to be established by
a long drawn process of reasoning on points where there may conceivably be two
opinions can hardly be said to be an error apparent on the face of record. As
the above discussion of the rival contentions show the alleged error in the
present case is far from self evident and if it can be established, it has.
to be established, by lengthy and complicated
arguments." The learned judge here lays down the complex nature of the
arguments as a test of apparent error of law. This test also may break, for
what is complex to one judicial mind may be clear and obvious to another : it
depends upon the equipment of a particular judge. In the ultimate analysis the
said concept is comprised of many imponderables : it is not capable of precise
definition, as no objective criterion can be laid down, the apparent nature of
the error, to a large extent, being dependent upon the subjective element.
So too, in some cases the boundary between
error of law and error of fact is rather thin. A tribunal may hold that 500
multiplied by 10,000 is 5 lakhs (instead of 50 lakhs);
another tribunal may hold that a particular
claim is barred by limitation by calculating the period of time from 1956
instead of 1961 ; and a third tribunal may make an obvious error deciding a
mixed question of fact and law. The question whether the said errors are errors
of (1)  1 S.C.R. 1104,1121, 1123. (2)  1 S.C.R.
820 law or fact cannot be posted on a priori
reasoning., but -falls to be decided in each case. We do not,, therefore,
propose to define with any precision the concept of "error of law apparent
on the face of the record"; but it should be left, as it has always been
done, to be decided in each case.
The only question therefore, is whether the
State Transport Appellate Tribunal committed an error of law apparent on the
face of the record. A look at the provisions of s. 47 and s. 43 of the Motor
Vehicles Act, 1939, as amended by the Madras Legislature, will facilitate the
appreciation of the problem. Under s. 47, a Regional Transport Authority in
considering an application for a stage carriage permit is enjoined to have
regard, inter alia, to the interests of the public generally. Section 43-A,
introduced by the Madras Legislature by the Motor Vehicles (Madras Amendment)
Act, 1948, says that the State Government may issue such orders and directions
of a general character as it may consider necessary in respect of any matter
relevant to road transport to the State Transport Authority or to a Regional
Transport Authority and such Transport Authority shall give effect to all such
orders and directions. It has been held by this Court in M/s. Raman & Raman
Ltd. v. The State of Madras (1), that s. 43A conferred a power on the State
Government to issue administrative directions, and that any direction issued
there under was not a law regulating rights of parties. It was also pointed out
that the order made and the directions issued under s. 43-A of the Act cannot
obviously add to, or subtract from, the consideration prescribed under s. 47
thereof on the basis of which the tribunal is empowered to issue or refuse to
issue a permit, as the case may be. It is, therefore clear that any direction
given under s. 43A for the purpose of considering conflicting claims for a
permit by applicants can only be to enable the Regional Transport (1) 
Supp. 2 S.C.R. 227.
821 Authority to discharge its duties, under
s. 47 of the Act more satisfactorily, efficiently and impartially. To put it
differently the directions so given cannot enlarge or restrict the jurisdiction
of the said tribunal or authority but only afford a reasonable guide for
exercising the said jurisdiction. Concretely stated, an applicant in advancing
his claim for a permit may place before the Authority an important circumstance
in his favour, namely, that he has a branch office on the route in respect where
of he seeks for a permit. He may contend that he has an office on the route,
and that the interests of the public will be better served, as the necessary
amenities or help to meet any eventuality in the course of a trip will be
within his easy reach. The Government also under s. 43A may issue instructions
to the Regional Transport Authority that the existence of an office of a
particular applicant on the route would be in the interests of the public and,
therefore, the said applicant should be given a preferential treatment if other
things are equal. The issue of such an instruction only emphasizes a relevant
fact which an authority has to take into consideration even if such an
instruction was not given. But if the Authority under a manifest error of law
ignores the said relevant consideration, it not only disobeys the
administrative directions given by the Government, but also transgresses the
provisions of s. 47 of the Act. The disobedience of the instructions which are
administrative in nature may not afford a cause of action to an aggrieved
party, but the transgression of the statutory law certainly does. What is the
position in the present. case ? The Government issued G. O. No. 1298 (Home),
dated April 28, 1956, introducing a marking system for assessing the merits of
applicants for stage carriage permits. Column 3 reads thus "Location of
residence or place of business of the applicant on the route or at the terminal
822 This qualification not only is in favour
of local enterprise but also secures that the owner will pay prompt and
frequent attention to the service entrusted to him. One mark may be assigned to
this qualification." Under this instruction the location of the residence
or the place of business is considered to be in the interests of the public,
for whose benefit the service is entrusted to a permit-holder. The first
respondent contended before the Regional Transport Authority that he had branch
offices at Tanjore and mannargudi and therefore that fact should be taken into
consideration and a mark should be given to him there under. The Regional
Transport Authority gave one mark to the appellant and also one mark to the
first respondent under that column. But the Appellate Tribunal refused to give
any mark under that column to the first respondent for the following reasons :
"On behalf of the other appellants and
the Respondent it is contended that appellant No.
1 (1st respondent before the Supreme Court)
is a Private Ltd. Company having its registered office at Madras, that their
offices at Kumbakonam is only a branch office, that the offices, if any at
Tanjore or at Mannargudi cannot be treated as branch offices, and that, as such
they are not entitled to any mark in column 3 of the mark list. This contention
is a valid one." In regard to the Tanjore office the said appellate
Tribunal has given an additional reason by holding on the facts that it was not
an office at all. We can, therefore, ignore the Tanjore office for the purpose
of this appeal. So far as the mannargudi office is concerned, the decision of
the Appellate Tribunal was based upon an obvious error. It took the view that
if a company bad a branch office at 823 one particular place, it could not have
in law any other branch office though it had one in fact. Whatever conflict
there may be, on which we do not express any opinion, in a tax law or the
company law, in the context of the marking system and the evaluation of an
amenity in the interest of the public, it is obviously an untenable proposition
to hold that even if a company has a well equipped office on a route in respect
of which a permit is applied for, it shall be ignored if the company has some
other branch somewhere unconnected with that route. That was what the Appellate
Tribunal held and in our view it is an error apparent on the face of the
record. On that erroneous view, the Appellate Tribunal did Dot decide the
relevant question raised, namely, whether the respondent has any such office at
mannargudi. Both Ramachandra Iyer, J., at the first instance, and Anantanarayanan
and Venkatadri, jj., in 'appeal, rightly pointed out this error. As this is an
error apparent on the face of the record, they quashed the order of the
Appellate Tribunal and left the question open for decision by it. In our view,
the conclusion arrived at by the High Court is correct.
It remains only to notice the decisions on
which strong reliance is placed by learned counsel for the appellant in support
of his contention.
In M/s. Raman and Raman Ltd. v. The State of
Madras (1), the relevant facts were : the appellant and the 4th respondent
therein, along with others, were applicants for a stage carriage permit. The
Regional Transport Authority granted the permit to the appellant on the basis
of instructions issued by the State Government under s. 43A of the Motor
Vehicles Act; on appeal, the Central Road Traffic Board set aside that order on
the footing of fresh instructions issued by the Government; and a division
Bench of the Madras High Court dismissed the writ petition filed by the
appellant. It was, (1)  Supp. 2 S.C.R. 227.
824 inter alia, contended before this Court
that the instructions given under s. 43A being law regulating rights of
parties, the appellate authority could not ignore that law and set aside the
order of the Regional Transport Authority on. the basis of subsequent
instructions. The contention was rejected on the ground that instructions under
s. 43A were not law, but were only administrative directions and that the fact
that the appellate tribunal ignored them would not affect its jurisdiction if
it had come to a decision having regard to the considerations laid down in s.
47 of the Act. The question before the tribunal was whether a small unit or a
large one would be viable or would be in the interest of the public. There was
scope, for taking different views on the question, and the appellate tribunal,
contrary to the earlier directions, came to the conclusion that smaller units
would be more in the interest of the public than larger ones. This judgment,
therefore, is an authority only for the position that a tribunal in issuing or
refusing to issue a permit to an applicant would be acting within its
jurisdiction notwithstanding the fact that it ignored the administrative
directions given by the Government under s. 43A of the Act, provided it had
come to a decision on the relevant considerations laid down in s. 47 of the
In Abdulla Rowther v. The State Transport
Appellate Tribunal, Madras (1), the Regional Transport Authority issued a
permit each to the appellant therein and to one Gopalan Nair. On appeal, the
Appellate Tribunal set aside that order and gave the permits to respondents, 3
Both the Regional Transport Authority and the
Appellate Tribunal considered the applications on the basis of G.O. No. 1298
issued by the Government of Madras on April, 28, 1956. The Regional Transport
Authority gave 4 marks each to the appellant and Gopalan Nair under Col. 1,
which dealt with the building (1) A.I.R. 1959 S.C. 896.
825 strength to viable units, and refused, to
give any marks to respondents 3 and 4 under the said column on the ground that
they were fleet owners; with the result that the appellant and Gopalan Nair
secured more marks than respondents 3 and 4 and were, therefore, given the
permits. But the Appellate Tribunal held that the appellant and Gopalan Nair
were not entitled to claim the benefit of the marks under Col. 1, as they had
secured less marks than respondents 3 and 4 under Cols. 3 to 5, for they held,
on a fair obstruction of the said G.O., that it was only when the marks
obtained by applicants under Cols. 2 to 5 were equal, recourse could be had to
'Col. 1. On that basis, the Appellate Tribunal quashed the order of the Regional
Transport Authority and gave the permits to respondents 3 and 4. The appellant
challenged the said order by an application under Art. 226 of the Constitution
for a writ of certiorari in the High Court of Madras. Rajagopalan, J.,
dismissed the application on two grounds, namely, (1) that the construction of
the G.O. was not shown to be wrong and (2) that even if the G.
O. was misconstrued, it would not justify the
issue of a writ of certiorari, as the said G. O. embodied only administrative
directions. The Letters Patent Appeal filed against the said order was
dismissed. The appeal filed to this Court was also dismissed. This Court
followed the decision in M/s. Raman and Raman Ltd. v. The State of Madras (1),
and held that the -instructions given under s.
43-A of the Motor Vehicles Act were only
administrative directions and that, therefore, even if the rule as to the
assignment of marks was infringed, it was not an error of law at all. This
decision only follows the earlier decision and lays down that instructions
given under s. 43A of the Motor Vehicles Act are only administrative directions
and that a wrong construction of the said instructions would not enable the
party affected to apply for a writ of certiorari.
The instructions laid down a method of
evaluation (1) Supp. 2 S.C.R. 227.
826 of the respective claims vis-a-vis 'the
considerations laid down in s. 47 of the Act. The Regional Transport Authority
and the Appellate Tribunal have borne in mind the said considerations, in
deciding upon the rival claims, though they may have wrongly interpreted one of
It may be pointed out that in that case the
interpretation put upon the instructions was a correct one, though this Court
proceeded on the assumption also that they might have been wrongly interpreted.
But the decision cannot obviously be an authority for the position that on a
wrong interpretation of the administrative directions or dehors the said
directions, a tribunal can ignore the relevant considerations laid down in s.
47 of the. Act or on the basis of an error of law apparent on the record
wrongly refuse to decide on any of such considerations.
To the same effect is the decision of this
Court in Ayyaswami Gounder v. M/s. Soudambigai Motor Service (1).
There, the Regional Transport Authority
followed the marking system as laid down by the Government of Madras and gave
to the appellant (therein) 5 marks and to the respondent 6 marks. Though the
respondent got 6 marks, he was not given the permit, as in the view of the said
Authority he was guilty of misconduct. As between the other applicants, the
appellant having secured the highest number of marks, he was given a permit.
But on appeal the Appellate Tribunal reallotted the marks and under the re-allotment
the appellant got the highest number of marks; and because of that fact and
also for the reason that he was a small operator of two buses, who should be
given an opportunity to build up a viable unit as quickly as possible, he was
given the permit by the Appellate Tribunal upholding the order of the Regional
Transport Authority. One of the question raised there was whether the appellant
was entitled to marks under Col. 2 for repair and maintenance, facilities at
Dharapuramthe (1) Civil Appeal No. 198 of 1962 (decided on 17-9-1962).
827 Appellate Tribunal found that he had such
facilities. The appellant filed a writ in the High Court and the learned single
judge thought that some mistakes had been committed by the Appellate Tribunal
in the allotment of marks and that it acted in contravention of the directions
given by the Government under the said G. O., but dismiss the petition on the
ground that, as the said instructions are Only executive directions, their
contravention did not confer any right on the parties before the tribunal. On
Letters Patent Appeal a Division Bench of that Court set aside that order on
the ground that the Appellate Tribunal had taken into consideration the
following two irrelevant considerations: (i) the appellant's claim should
suffer because of the punishment for his past misconduct, and (ii) the -third
respondent being a small operator, he would be entitled to better Consideration
than the appellant who was a monopolist. On appeal, this court followed the
decision in M/s. Raman and Raman Ltd. v. The State of Madras (1) and Abdullah
Rowther v. The State Transport Appellate Tribunal (2) and held that under the
said G. O. the Government issued only administrative directions and that the
failure of the transport authorities to follow them would not entitle the
respondents to a writ. As regards the two reasons given by the High Court, this
Court came to the conclusion that they were not irrelevant considerations, but
were considerations germane in the matter of issue of permits. In the result
this Court allowed the appeal. This decision accepts two propositions, namely,
(1) misconstruction or even disregard of the instructions, given by the
Government does not confer a right upon an aggrieved party to file a writ, for
the said instructions are only administrative directions, and (2) the decision
implies that if the Tribunal decides on irrelevant considerations, the Court
can issue a writ. But in that case it came to the conclusion that no such
irrelevant considerations weighed with the Tribunal.
(1)  Supp. 2 S.C.R. 227 (2) A.I.R. 1959
828 The last of the cases relied upon is that
in Sankara Ayyer v. Narayanaswami Naidu (1). There too., the Regional Transport
Authority and the State Transport Appellate Tribunal considered the
applications for the grant of a permit for a new route on the basis of the
administrative directions given by the State Government. The regional Transport
Authority gave the appellant 3 marks on the basis that he was a small operator,
but the Appellate Tribunal came to the conclusion that he was not entitled to
any marks as a small operator. A single judge of the High Court set aside the
order of the Appellate Tribunal on the ground that it misconstrued the
directions contained in the Government Order relating to small operators. But a
division Bench of that Court in Letters Patent appeal held, relying upon the
earlier decision of this Court, that the said directions were only
administrative in nature and that they did not confer any legal rights and in
that view allowed the appeal.
This Court again following the earlier
decisions dismissed the appeal holding that by construing the administrative
directions the Tribunal did not take irrelevant considerations or refused to
take relevant considerations in the matter of issue of permits. It is always a
controversial question whether the issue of a permit to a small operator or to
a big operator would be in the interest of the public and a Tribunal is
certainly entitled to take either view.
It will be seen from the aforesaid decisions
that this Court only laid down that the instructions given under s. 43A of the Motor
Vehicles Act were only administrative directions and that the infringement of
those instructions by the Tribunal did not confer any right on a party to apply
to a High Court for a writ under Art. 226 of the Constitution.
In all those cases the Tribunal either
ignored the instructions or misconstrued them, but nonetheless decided the
question of issue of permits on considerations relevant (1) Civil Appeal No.
213 of 1960 (decided on 10-10-1960).
829 under s. 47 of the Act. They are not
authorities on the question whether a writ of certiorari, would lie, where a
Tribunal had on an obviously wrong view of law refused to decide or wrongly
decided on a consideration relevant -under s. 47 of the Act, whether or not it
was covered by the instructions given under s. 43-A. For if on the basis of
such an error of law, it refuses to decide a relevant question, the fact that
the Government also issued instructions to the Tribunal to apply some objective
standards in deciding such a question does not make the said question any the less
a relevant consideration under s. 47 of the Act.
That is the position in the present case. As
we have already indicated, on the basis of an error manifest on the record,
namely, that a company cannot have a branch office on the route in question, if
it has another branch elsewhere, it refused to take into consideration a
relevant fact, namely, whether the respondent has an office on the said route.
The High Court, therefore, was right in quashing the order of the Appellate
Tribunal and giving an opportunity to the Tribunal to decide that question on
In the result, the appeal fails and is
dismissed with costs.