A. S. T. Arunachalam Pillai Vs. M/S.
Southern Roadways (Private) Ltd. [1960] INSC 97 (29 April 1960)
IMAM, SYED JAFFER SINHA, BHUVNESHWAR P.(CJ)
SARKAR, A.K.
SUBBARAO, K.
SHAH, J.C.
CITATION: 1960 AIR 1191
CITATOR INFO :
R 1963 SC 64 (7)
ACT:
Motor Vehicles-Stage carriage Permits,
variation ofjurisdiction of Regional Transport Officer-State Government's Power
of revision-Motor Vehicles Act, 1939 (4 Of 1939), as amended by the Madras Act,
20 Of 1948, ss. 44A, 64A.
HEADNOTE:
The question for decision in this appeal was
whether the Regional Transport Officer under the Motor Vehicles Act, 1939, as
amended by the Madras State Legislature, had the power to vary the terms of a
stage carriage permit granted under that Act. The appellant, holder of a stage
carriage permit, applied on July 19, 1954, to the Regional Transport Officer
for a variation of the route specified in his permit. The Regional Officer
after hearing objections rejected the application. The appellant applied to the
State Government for revision of the order under s. 64A of the Act and the
Government after hearing objections set aside the order of the Regional
Transport Officer and granted variation of the permit as sought for. Against
this order the respondent moved the Madras High Court under Art.
226 of the Constitution. The Single judge who
heard the matter, following a decision of a Division Bench of that Court, held
that the Regional Transport Officer had no jurisdiction to deal with the
appellant's application and the State Government for that very reason could
have no power in revision to grant the same, and set aside the order of the
Madras Government:
Held (per Sinha, C. J., Imam, Sarkar and
Shah, jj.). Section 64A of the Motor Vehicles Act, introduced into the Act by
the Madras Legislature, although couched in wide language, does not confer on
the State Government any original jurisdiction or authorise it to pass in
revision an order which the authority, whose order it seeks to revise, has no
jurisdiction to pass. While undoubtedly it can set aside an order of. an
authority or officer 765 subordinate to it passed without jurisdiction under
Ch. IV of the Act, it cannot substitute its own order directing a variation of
the stage carriage permit granted to a particular person. Sections 43 and 48 of
the Act make it quite clear that no such authority is vested in the State
Government and the words " as it thinks fit " in s. 64A must mean
within the ambit of the provisions of the Act.
The words " any officer subordinate to
him " used in s. 44A of the Act, as amended by the Madras State
Legislature are of wide import and cannot be given a restricted meaning and
must include an officer in any way subordinate to the Transport Commissioner.
The Regional Transport Officer who was
admittedly and without doubt administratively subordinate to the Transport
Commissioner by virtue of the Madras Government notification dated February 14,
1953, at the time the application was made and was duly authorised in this
behalf, had the jurisdiction to vary the conditions of the permit issued to the
appellant.
Section 44A of the Act did not depend for its
operation on any rules to be framed under s. 133A of the Act, which was merely
an enabling section, by the Government.
Consequently, there can be no doubt that the
State Government had the power under s. 64A of the Act to vary the terms of the
permit which the Regional Transport Officer had refused to do.
B. Veeraswamy v. State of Andhra Pradesh,
A.I.R. 1959 And.
Pradesh 413, approved.
T. Krishnaswamy Mudaliar v. P. S. Palani
Pillai, A.I.R.
1957 Mad. 599, disapproved.
Per Subba Rao, J.-Section 44A of the Act does
not authorise the State Government to appoint subordinate officers to the
Transport Commissioner but only enables it to confer statutory powers on
officers subordinate to him. The State Government has made no rules under s.
133A of the Act making the Regional Transport Officer subordinate to the
commissioner. It is, therefore, manifest that neither under the statute nor
under any rules made there under is the Regional Transport Officer subordinate
to the Commissioner in any way within the meaning Of s. 44A of the Act.
Even assuming that the State Government
administratively treated the Regional Transport Officer as a subordinate to the
Transport Commissioner and the word 'may' in s. 133A of the Act conferred a
discretionary power on it either to frame rules or not to do so, it is wrong to
say that it could do administratively what it was empowered to do by rules. If
the Government really intended to make the Regional Transport Officer
subordinate to the State Transport Commissioner, the only way in which it could
do so was by framing a rule under s. 133A(3) of the Act.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 262 of 1958.
100 766 Appeal from the judgment and order
dated July 17, 1957, of the Madras High Court, in Writ Appeal No. 110 of 1956,
arising out of the judgment and order dated September 3, 1956, of the said High
Court in Writ Petition No. 2/1956.
M. C. Setalvad, Attorney-General of India,
S.N. Andley, J.
B. Dadachanji, Rameshwar Nath and P. L.
Vohra, for the appellant.
R.Ganapathy Iyer, N. R. Govindachari and G.
Gopalakrishnan, for respondent No. 1.
1960. April 29. The Judgment of Sinha, C. J.,
Imam,Sarkar and Shah, JJ., was delivered by Imam, J., Subba Rao, J., delivered
a separate Judgment.
IMAM, J.-This appeal is on a certificate
granted by the Madras High Court as in its opinion it involved a substantial
question of law to the effect " whether the delegation to the Regional
Transport Officer of the power to vary the conditions of a permit is valid
". The appellant is the proprietor of Sri Vinayagar Transports, Woriyur,
Tiruchirapalli. He held a permit to ply his bus on the route Tiruchirapalli
Mainguard Gate to Tiruchirapalli Railway Station via Palakarai and Round Tana.
He applied on July 19, 1954, to the Regional Transport Officer, Tiruchirapalli,
for variation of the route so as to ply his bus between Mainguard Gate and
Golden Rock via Palakarai, Round Tana, Tiruchirapalli Railway Station and
retrace again to Round Tana and thence to Golden Rock. The Regional Transport
Officer notified this application for variation and called for objections. The
appellant's application and the objections thereon were heard on July 15, 1955,
but the Regional Transport Officer rejected the application. The appellant
filed a Revision Petition before the Government of Madras under s. 64A of the Motor
Vehicles Act, hereinafter called the Act, s. 64A having been introduced into
that Act by the Legislature of the State of Madras. The Madras Government after
having heard objections to the Revision Petition, by its order dated December
28, 1955, set aside the order of the Regional Transport Officer and directed
the grant of the variation in the permit of the appellant as prayed for by him.
Against the, order of the Madras Government the respondent, 767 the Southern
Roadways (Private) Ltd., hereinafter called the respondent, filed a petition
under Art. 226, of the Constitution in the Madras High Court on January 2,
1956, for the issue of a writ of certiorari to quash the order of the
Government of Madras.
When the petition came up for hearing before
Rajagopalan, J., the respondent raised a plea which was not taken in the
petition under Art. 226 of the Constitution to the effect that the Regional
Transport Officer had no jurisdiction to grant the variation asked for by the
appellant and the Government had likewise no jurisdiction to grant, in revision,
what the Regional Transport Officer himself could not have granted. This plea
was made on account of a Division Bench decision of the Madras High Court in
Writ Appeal No. 107 of 1955, arrived at since the filing of the petition,
wherein it was held that the Regional Transport Officer had no jurisdiction to
deal with an application for variation of the conditions of a permit.
Rajagopalan, J., following the decision in Writ Appeal No. 107 of 1955 held
that the Regional Transport Officer had no jurisdiction to deal with the
appellant's application for variation and that it followed that the Government
of Madras had equally no jurisdiction to grant the variation on a revision
petition filed against the order of the Regional Transport Officer.
The learned Judge accordingly set aside the
order of the Government of Madras dated December 28, 1955, without going into
the other contentions raised by the respondent in its petition under Art. 226.
The appellant appealed against the decision of Rajagopalan, J. Although in the
appeal the correctness of the decision in Writ Appeal No. 107 of 1955 was
questioned it was not pressed because of the decision of the Full Bench of the
Madras High Court in Writ Appeals Nos.
56 and 57 of 1956 decided on April 12, 1957.
The argument in the present case therefore proceeded on the footing that the
Regional Transport Officer, Tiruchirapalli, had no jurisdiction to deal with
the appellant's application for variation.
In the High Court on behalf of the appellant
it was urged that the respondents had submitted to the jurisdiction of the
Regional Transport Officer and 768 therefore could not at a later stage obtain
the discretionary writ of certiorari on the ground that there was lack of
jurisdiction. It was next contended that even if the Regional Transport Officer
bad no jurisdiction to deal with the appellant's application for variation the
order of the Government of Madras which was sought to be quashed could not be
said to be one passed without jurisdiction or in excess of jurisdiction because
the Government had undoubtedly power to pass the order in question under s. 64A
of the Act. Both these contentions were rejected and the decision of
Rajagopalan, J., was affirmed. The High Court, however, granted a certificate
that the case was a fit one for appeal to this Court.
The principal question for consideration in
this appeal is whether the Regional Transport Officer had the power to vary the
conditions of a permit to ply a stage carriage. In order to decide that
question some sections of the Act, as amended by the Legislature of the State
of Madras, will require consideration, particularly the provisions of s. 44A.
But before we proceed to do that the other two questions which were decided
against the appellant by the High Court may first be considered.
In our opinion, although the respondent had
submitted to the jurisdiction of the Regional Transport Officer and had not in
his petition under Art. 226 in the High Court taken the objection that officer
had no jurisdiction to vary the conditions of a permit, the High Court acted
rightly in allowing the respondent to urge that the Regional Transport Officer
had no jurisdiction to vary the conditions of a permit. It was not until the
decision of the High Court in Writ Appeal No. 107 of 1955 that it became the
considered view of that Court that the Regional Transport Officer bad no
jurisdiction to make any such variation. When the law was so declared by the
High Court it could not reasonably be said that the High Court erred in
allowing the respondent to take this point although in its petition under Art.
226 the point had not been taken. This was obviously because the decision of
the High Court in Writ Appeal No. 107 of 1955 had not been given at the time of
the filing of the petition, 769 Since the question went to the root of the
matter and it involved the question whether the Regional Transport Officer had
jurisdiction to vary the conditions of a permit the High Court, faced with a
Division Bench decision of its own on the matter, could not very well refuse
permission to the respondent to rely on that decision in support of its
petition questioning the validity of the order of the Government of Madras made
under s. 64A of the Act.
It had been strongly urged in this Court on
behalf of the appellant that on a proper construction of s. 64A of the Act
there was ample power in the Government of Madras to make an order directing
the variation sought in the conditions of the permit of the appellant, even
though the Regional Transport Officer had no jurisdiction to do so.
Section 64A empowered the Government of
Madras to pass such orders as it thought fit with respect to any order passed
or proceedings taken under Chapter IV of the Act by any authority or officer
subordinate to it for the purpose of satisfying itself of the legality,
regularity or propriety of the order or proceeding, when it had called for the
records of the case. In our opinion, s. 64A is a power vested in the State
Government by way of revision of orders passed under Chapter IV of the Act by
any authority or officer subordinate to it. This is not a power which the State
Government could exercise by way of original jurisdiction which was vested
elsewhere. In our opinion, although the words " may pass such order in
reference thereto as it thinks fit " are wide in expression, they do not
mean that the State Government could pass an order in exercise of revisional
jurisdiction which the authority whose order the Government was revising had no
jurisdiction to pass. The State Government could undoubtedly set aside an order
of an authority or officer subordinate to it who had no jurisdiction to pass
the order in question under Chapter IV but it could not substitute for that
order its own order directing the variation in the conditions of the permit of
the appellant. It is significant that s. 43 which deals with the power of the
State Government to control 770 Road Transport does not mention that such a
Government has the power to vary the conditions of a permit, although the
various powers conferred by that section are fully specified, including the
power to vary the notification issued under the section. If the Act had
intended to give the power to the State Government to vary the conditions of a
stage carriage permit granted to a particular person it would have specified
such a power in this section. The authority which is empowered to vary the
conditions of a permit is stated in s. 48A which certainly is not the State
Government. Under the Act, therefore, no such authority was vested in the State
Government and the words in s. 64A " as it thinks fit " must mean
within the ambit of the provisions of the Act.
Coming now to the question whether the
Regional Transport Officer had the power to vary the conditions of the permit
of the appellant it would be necessary to construe s. 44A of the Act. Before we
proceed to do so, reference to certain sections of the Act and the Rules framed
there under would be necessary as well as certain relevant facts. Section 42
prohibits the owner of a transport vehicle to use or permit its use, save in
accordance with the conditions of a permit granted or counter-signed by a
Regional or Provincial Transport Authority. Reference to s. 43 has already been
made which deals with the power of the State Government to control road
transport. Section 43A empowers the State Government to issue such orders and
directions of a general character as it may consider necessary in respect of
any matter relating to road transport to the State Transport Authority or
Regional Transport Authority and such Authority shall give effect to all such
orders and directions.
Section 44 empowers the State Government by
notification in the Official Gazette to constitute a State Transport Authority
and Regional Transport Authorities, the former to exercise and discharge the
functions specified in sub-s. (3) and the latter to exercise powers as may be
specified in the notification in respect of each Regional Transport Authority.
Section 44A which is incorporated by the Madras Amending Act reads:
771 " The State Government may appoint a
State Transport Commissioner and notwithstanding anything contained in this
Act, may, by notification in the Fort St. George Gazette, authorize such
Commissioner or any officer subordinate to him, to exercise and discharge in
lieu of any other authority prescribed by or tinder this Act such powers and
functions as may be specified in the notification ".
Section 45 deals with applications for a
permit and directs that they shall be made to the Regional Transport Authority
of the region in which it is proposed to use the vehicle.
Section 46 states the matters which shall be
stated in the application for a permit. Section 47 provides the procedure to be
observed by a Regional Transport Authority in considering applications for
stage carriage permits.
Section 48 empowers a Regional Transport
Authority to restrict the number of stage carriages for which permits may be
granted in the region or in any specified area or on any specified route within
the region and to impose conditions on such permits. One of these conditions is
contained in cl. (d)(ii-a) which is to the effect that stage carriage or stage
carriages shall be used only on specified routes or in a specified area.
Section 48A provides for the alteration of the conditions attached to a permit
and reads:
" Any conditions attached to a stage
carriage permit in pursuance of cl. (d) of s. 48 may at any time be varied,
cancelled or added to by the State Transport Authority, provided that this
power shall not be exercised to the prejudice of the holder of the permit
without giving not less than three months' notice to him." Section 133A(1)
authorises the State Government for the purpose of carrying into effect the
provisions of the Act to establish a Motor Vehicles Department and to appoint
as officers thereof such persons as it thinks fit. Sub-s. (3) authorises the
State Government to make rules to regulate the discharge by officers of the
Motor Vehicles Department of their functions and in particular and without prejudice
to the generality of the foregoing power to prescribe the uniform to be 772
worn by them, the authorities to which they shall be sub ordinate, the duties
to be performed by them, the powers (including the powers exercisable by police
officers under the Act) to be exercised by them and the conditions governing
the exercise of such powers. No rules, in fact, had been framed.
It will be seen from what has been stated
that it is the State Transport Authority and no other which is authorised under
s. 48A to vary the conditions of a permit of a stage carriage. Section 44A,.
however, authorises the State Government to appoint a State Transport
Commissioner. It further provides that notwithstanding anything contained in
the Act the State Government may by notification authorise the State Transport
Commissioner or any officer subordinate to him to exercise and discharge in
lieu of any other authority prescribed by or under the Act such powers and
functions as may be specified in the notification. By this section, although
under s. 48A it is the State Transport Authority Which can vary the conditions
of a stage carriage permit, the State Government could, notwithstanding the
provisions of that section, authorise the State Transport Commissioner to
exercise such powers in lieu of the State Transport Authority. It could also
confer such power on an officer subordinate to the State Transport
Commissioner.
The vital question for determination is, how
are the words " any officer subordinate to him " to be construed. In
construing these words the provisions of s. 133A will have to be kept in mind
as it was contended on behalf of the respondent that these sections should be
read together. It was urged on behalf of the respondent that under s. 133A (3)
as to who was subordinate to whom in the Motor Vehicles Department had to be
prescribed by rules. As no rules had been framed it could not be said that the
Regional Transport Officer was subordinate to the State Transport Commissioner.
The Full Bench of the Madras High Court in
the case of T. Krishnaswamy Mudaliar v. P. S. Palani Pillai (1) had occasion to
consider whether a Regional Transport Officer was subordinate to the State
Transport Commissioner for the purposes of the Act. Three (1) A.I.R. 1957 Mad.
599.
773 views were pressed before it. The first
view, which was favoured by a Division Bench of that Court, was to the effect
that the word 'subordinate' in s. 44A meant " administrative subordination
". The seconds,, view was pressed by the Advocate-General of Madras who
had urged that the word 'subordinate' in the section meant "functional
subordination" and the third view was pressed by Mr. Nambiar to the effect
that the word 'subordinate' meant " statutory subordination ". It was
the third view which was accepted by the Full Bench and the High Court
expressed its opinion in the following words:" Of the three views placed
before us we are inclined to prefer the third. It appears to us to be the most
rational and the most free from objections. It is in accord with all well
established rules of interpretation of Statutes. It does not require as the
theory of 'functional subordination' seems to require, the introduction of now
words into the section. It has the merit of being more flexible of powers not
merely at the State level but at the regional level also. It ensures that there
will be no transfer or delegation of powers except to officers whose
subordination has been determined by rules properly framed under the Act.
It also ought to avoid the anomaly that has
now occurred of a person in the position of a Secretary of a body being empowered
to vary the condition of a permit granted by that body. We therefore adopt this
view." The High Court in rejecting the view submitted by the
Advocate-General observed that there were no qualifying words whatever to the
word 'subordinate' in s. 44A.
The Full Bench decision of the Andhra Pradesh
High Court in the case of B. Veeraswamy v. State Of Andhra Pradesh (1) did not
agree with the Full Bench decision of the Madras High Court. The Andhra Pradesh
High Court was of the opinion that the Regional Transport Officer was an
officer subordinate to the Transport Commissioner within the meaning of s. 44A
of the Act. It laid emphasis on the word " any " and observed that word
excluded limitation or (1) A.I.R. 1959 And. Pradesh 413.
774 qualification and connoted wide
generality. It comprehended not only the officer whose subordination was
statutorily determined, but all eligible subordinate officers and therefore the
Regional Transport Officer came within the ambit of the expression " any
officer subordinate " used in s. 44A. Having examined the reasons given in
the decisions of the Full Bench of the Madras High Court and the Full Bench of
the Andhra Pradesh High Court we are generally in agreement with the view taken
by the Andhra Pradesh High Court for the reasons which we now proceed to state.
We have not on the record any material to
show when the Madras Government appointed a State Transport Commissioner nor
have we any notification in the Fort St. George Gazette as to what powers he or
an officer subordinate to him was authorized to exercise and discharge in lieu
of any other authority prescribed by or under the Act. The Madras Road Traffic
Code of 1940 shows that on May 21, 1947, the Governor of Madras constituted a
Provincial Transport Authority for the Province (now the State) of Madras, a
Regional Transport Authority for the district and city of Madras and a Regional
Transport Authority for each of the other districts in the Province (now the
State) of Madras.
This Code also contains the Madras Motor
Vehicles Rules, 1940, hereinafter called the Rules. The Rules came into force
on April 1, 1940. Under Rule 3(c) " Central Road Traffic Board " or
"Central Board" means the Provincial Transport Authority constituted
for the State of Madras under sub-s. (1) of B. 44 of the Act. This definition
obviously must have been inserted in the Rules after the constitution of the
Provincial Transport Authority in the year 1947. This definition was again
altered on December 2O, 1955, and for the words " Central Road Traffic
Board " or " Central Board " the words " State Transport
Authority " was substituted. On the same date a further definition was
added to the Rules by the insertion of cl. (m) in Rule 3 which was to the
effect that " Transport Department " means the Motor Vehicles
Department set up under s. 133A of the Act. The Government of Madras issued a
Notification No. G.
0. MS. 527 on February 14, 1953, wherein it
was stated that prior 775 to the decision of the Madras High Court in Writ
Petition No. 806 of 1951 the Regional Transport Authorities were varying
whenever necessary all the conditions of the permits, but according to the
decision of the High Court in that petition the Regional Transport Authorities
could not vary the existing conditions of a stage carriage permit imposed under
s. 48(d) of the Act and that it was only the State Transport Authority which
could do so under s. 48A of the Act. The decision of the High Court resulted in
great administrative inconvenience as all applications for variation of
conditions of permit would have now to be made to the State Transport Authority
which involved delay and inconvenience to operators. It further stated that the
Government of India had under consideration a proposal to amend s. 48 of the
Act so as to empower the Regional Transport Authorities to vary all conditions
of permits, but some time would be taken to carry out the necessary
legislation. Pending the legislation the Government of Madras had decided to
empower Regional Transport Officers, as a temporary measure, to vary conditions
of permits now dealt with by the State Transport Authority. The notification
further went on to say that in exercise of the powers conferred by s. 44A of
the Act the Governor of Madras authorized the Regional Transport Officers and
the Secretary, Road Traffic Board, Madras, to exercise the powers and discharge
the functions of the State Transport Authority under s. 48A, 51A and 56A of the
Act. On October 20,1955, the Government of Madras issued a further notification
reorganizing the Motor Transport Department with reference to the Motor
Vehicles (Madras Amendment) Act, 1944 (Act XXXIX of 1944). According to this
notification a Member of the Board of Revenue should be appointed as Transport
Commissioner under s. 44A of the Act and the present post of Transport
Commissioner should be abolished;
that an officer of the Transport Department
should be appointed as State Transport Authority who will also be the Assistant
Transport Commissioner; that the post of Secretary, Central Road Traffic Board,
should be re.
designated as Secretary, State Transport
Authority 776 that Collectors of districts in the mofussil and the Commissioner
of Police in the City of Madras should be appointed as Regional Transport
Authorities under s. 44 of the Act; that the Regional Transport Officers in the
mofussil and the Deputy Commissioner of Police (Traffic & Licensing) in the
Madras City should be the Secretaries to the Regional Transport Authorities and
that an officer of the grade of a District Judge should be appellate authority
prescribed under s. 64(1) of the Act, as amended, to deal with appeals against
the orders of the Regional Transport Authorities and be designated as the State
Transport Appellate Tribunal. Under cl. (2) of the notification the Member of
the Board of Revenue to be appointed as Transport Commissioner would be the
Head of the Transport Department and would have general responsibility for
administration of the Act. He would be empowered by the Government under s. 44A
to exercise the powers now exercised by the State Transport Authority under
sub-ss. 3(a) and (c) and (4) of s. 44 of the Act. In the discharge of these
functions the Transport Commissioner will have administrative control over the
Organisation at present working under the Transport Commissioner. Under cl. (4)
(ii) the powers under ss. 48A, 51 A and 56A of the Act to alter the conditions
of stage carriage permits, contract carriage permits and public carriers
permits, exercised by the Regional Transport Officers, would hereafter be
exercised by the Regional Transport Authorities. Under cl. 5(1) the Regional
Transport Officer would be the Secretary to the Regional Transport Authority
and ,in that capacity he would assist the Regional Transport Authority in the
performance of the functions prescribed in cl. (4). It is, however, to be
remembered that when on July 19, 1954, the appellant applied to the Regional
Transport Authority for the variation of the conditions of his permit, the
Notification No. G.O. MS. 527 dated February 14, 1953, of the Government of
Madras was in force by virtue of which Regional Transport Officers were
authorised to discharge the, functions of the State Transport Authority under
ss. 48A, 51 A and 56A of the Act.
777 In paragraph 6 of the statement of the
case filed by the respondent it was stated that in the exercise Of A,' the
powers conferred under s. 44(1) of the Act the Government of Madras constituted
Provincial and so Regional Transport Authorities. It also set up a Motor
Transport Department with a Transport Commissioner as its head and officers in
that Department, in the lower scale, were the Regional Transport Officers who
functioned as the Secretaries of the respective Regional Transport Authorities
called the Road Traffic Board. It was further stated in paragraph 7 that
although a Regional Transport Officer was a subordinate of the Transport
Commissioner on the administrative side he could not be held to be a subordinate
officer within the meaning of s. 44A. The State Government may establish a
Motor Vehicles Department and appoint officers thereto under s. 133A, but mere
appointment of officers in that Department could not invest them with statutory
functions to be discharged under the Act and under the Rules. Section 133A
contemplates framing of rules to regulate the discharge by officers of the
department of their functions as also to state the authorities to whom such
officers shall be subordinate and the duties to be per. formed by them. It was
not suggested that any duties or powers of a statutory nature had been vested
in the Transport Commissioner; nor was there any rule showing that the Regional
Transport Officer is a subordinate of the Transport Commissioner for the
purposes of the Rules. The statement of the case further stated that s. 44A
required a functional subordination and not merely an administrative one.
The Madras Financial Code, Vol. 11, Appendix
1, shows the list of Heads of Departments of the Government of Madras.
The Transport Commissioner is shown as the
Read of a Department. The Half-Yearly List of Gazetted Officers in the
Transport Department corrected upto the 31st of July, 1955, shows that the
Transport Commissioner is also the Chair. man, Central Road Traffic Board,
Madras, and subordinate to him are the Secretary, Central Road Traffic Board,
Madras, Assistant Secretary, Road Traffic Board, Madras and Regional Transport
Officers.
778 There can be no question therefore that
the Regional Transport Officers are officers subordinate to the Transport
Commissioner. It is perhaps for this reason that the respondent admits that the
Regional Transport Officers, administratively, are subordinate to the Transport
Commissioner. Section 44A speaks merely of an officer subordinate to the
Transport Commissioner to whom by notification the Government of Madras may
confer the authority in lieu of any other authority prescribed by or under the
Act to discharge the powers and functions of that authority. It was, however,
argued that until rules were framed under s. 133A specifying as to who is
subordinate to which authority for the purposes of the Act and the statutory
functions to be performed under the Act, administrative subordination is not
what is contemplated under s. 44A. On the other hand, on behalf of the
appellant it has been urged that effect must be given to the words of s. 44A
which did not in tile least indicate in what way the officer has to be
subordinate to the Transport Commissioner.
It was worthy of notice that s. 44A
authorized the State Government, notwithstanding anything contained in the Act,
to authorize any officer subordinate to the Transport Commissioner to exercise
and discharge in lieu of any other authority such powers and functions as may
be exercised by that authority. The section did not depend upon any rules to be
framed under s. 133A. Furthermore, s. 133A was an enabling section by which a
State Government could, if it so wished, for the purpose, of carrying into
effect the purposes of the Act establish a Motor Vehicles Department.
Until such a Department was established the
question of framing rules under the section did not arise.
There is no clear material on the record or
in the Madras Road Traffic Code from which it can be ascertained precisely as
to when the Madras Government established a Motor Vehicles Department. It is
significant, however, by a notification dated December 20, 1955, cl. (m) was
added to Rule 3 of the Rules and this stated that " Transport Department
" means the Motor Vehicles Department set up under s. 133A 779 of the Act.
Apparently, until this date Transport Department was something other than the
Motor Vehicles Department set up under s. 133A of the Act. It is clear,
therefore, that on February 14, 1953, when the Notification G.O. MS. No. 527
was issued by the Government of Madras the Regional Transport Officers were
officers subordinate to the Transport Commissioner. Even if at some time or the
other a Motor Vehicles Department had been set up by the Government of Madras
admittedly the Government of Madras bad framed no rules Linder s. 133A(3). If
rules had been framed under that section and they showed that the Regional
Transport Officers were not subordinate to the Transport Commissioner then a question
might well have arisen as to how the words " any Officer subordinate to
him " should be construed owing to a conflict between the Regional
Transport officer being administratively subordinate to the Transport
Commissioner and yet not subordinate to him by virtue of the rules framed under
s. 133A. Since, however, no rules have been framed under this section, so far
as s. 44A is concerned, any officer who is subordinate to the Transport
Commissioner in any way must include the Regional Transport Officers in the
Transport Department. The words of the section are wide enough for this
interpretation and they are incapable of being given the restricted meaning
suggested on behalf of the respondent. It was, however, suggested that
anomalies may occur if s. 44A is construed so widely, because a Regional
Transport Officer was a Secretary of a Regional Transport Authority and
therefore subordinate to that authority and yet he could be empowered to vary
the conditions of a permit which the State Transport Authority, to which the
Regional Transport Authority is subordinate, may have declined to do. In the
matter of interpretation such considerations cannot be of much assistance. If
the words of s. 44A are wide enough to mean any officer subordinate to the
Transport Commissioner they must be given effect to. In the matter of
interpretation a Court could not, if the words were plain enough, proceed on
the basis that possibly the Government of Madras may misuse its powers, 780 We
accordingly hold that the Regional Transport Officer, Tiruchirapalli, had
jurisdiction to vary the conditions of a permit by virtue of the power
conferred Y. on him by the Notification No. G.O. MS. 527 issued by the
Government of Madras. Consequently, that Government had the power under s. 64A to
do that which the Regional Transport Officer could have done but had refused to
do.
In our opinion, the appeal must be allowed
and the judgments of the single Judge and Appellate Court of the High Court
must be set aside and the case remanded to the High Court for the rehearing of
the writ petition by the single Judge as several questions which were raised in
that petition have not been decided by him. He had allowed the petition solely
on the ground that the decision of the Government of Madras must be set aside
as the Regional Transport Officer had no jurisdiction to vary the conditions of
the permit and that being so the Government of Madras could not make such an
order in the exercise of its revisional jurisdiction. The case will accordingly
go back to the single Judge for decision on the other points raised in the writ
petition filed by the respondent.
The appellant is entitled to his costs of
this appeal.
The costs in the High Court will abide the
result.
SUBBA RAO, J.-I have had the advantage of perusing
the judgment of my learned brother, Imam, J. I regret my inability to agree
with him in regard to the main question raised in the case, namely, whether the
Regional Transport Officer is subordinate to the State Transport Commissioner
within the meaning of s. 44A of the Motor Vehicles Act, 1939 (4 of
1939)(hereinafter referred to as the Act). The facts are fully stated by my
learned brother and it is not necessary to restate them here.
Section 44A was inserted in the Act by the
Madras Act 20 of 1948 and it reads:
" The State Government may appoint a
State Transport Commissioner, and notwithstanding anything contained in this
Act, may, by notification in the Fort St. George Gazette, authorize such
Commissioner or any officer subordinate to him, to exercise 781 and discharge
in lieu of any other authority prescribed by or under this Act, such powers and
functions as may be specified in the notification." This section empowers
the State Government to appoint only a State Transport Commissioner and does
not confer any power on it to appoint any officer subordinate to him; that
power must be found elsewhere in the Act or the rules made there under. This
section also does not enable the State Government to confer any powers on or
entrust any functions to, the said Commissioner other than those exercisable by
any authority under the Act. On the interpretation of this provision there is a
conflict of views between the full bench decision of the Madras High Court in
T. Krishnaswamy Mudaliar v. P. S. Palani Pillai (1) and the full bench decision
of the Andhra Pradesh High Court in B. Veeraswamy v. State of Andhra Pradesh
(2). In the former case, Balakrishna Ayyar, J., delivering the judgment of the
Court, summarized his views thus at p. 602:
" Of the three views placed before us we
are inclined to prefer the third (statutory subordination). It appears to us to
be the most rational and the most free from objections. It is in accord with
all well established rules of interpretation of Statutes. It does not require
as the theory of " functional subordination " seems to require, the
introduction of new words into the section. It has the merit of being more
flexible and practical since it permits of the transfer or delegation of powers
not merely at the State level but at the regional level also.
It ensures that there will be no transfer or
delegation of powers except to officers whose subordinate has been determined
by rules properly framed under the Act. It also ought to avoid the anomaly that
has now occurred of a person in the position of a secretary of a body being
empowered to vary the condition of a permit granted by that body. We therefore
adopt this view." On the other hand, Satyanarayana Raju, J., speaking for
the full bench of the Andhra Pradesh High Court, in the latter case summarizes
his views thus at p. 416:
(1) A.I.R. 1957 Mad. 599.
(2) A.I.R. 1959 A.P. 413.
102 782 The Regional Transport Officer is an
individual who is invested with the authority and is required to perform the
duties incidental to an office and is therefore an officer.
In the performance of his various duties, he
is subject to the direction and control of the Transport Commissioner. He is
thus an officer subordinate to the Transport Commissioner." The question
is which of the two views is correct. It falls to be decided on the provisions
of the Act and the rules framed there under. The Act was passed to consolidate
and amend the law relating to motor vehicles. It deals with a variety of
subjects relating to motor vehicles, such as licensing of drivers (Ch. 11),
registration of motor vehicles (Ch. 111), control of transport vehicles (Ch.
IV), construction, equipment and maintenance of motor vehicles (Ch. V), control
of traffic (Ch. VI), motor vehicles temporarily leaving or visiting India (Ch.
VII), insurance of motor vehicles against third party risks (Ch. VIII),
offences, penalties, and procedure (Ch. IX), and miscellaneous (Ch. X). Each
chapter, with the exception of ch. X, provides for a particular aspect relating
to motor vehicles and is, within its range, self-contained, and contains a
separate provision conferring power on the Government to make rules for the
purpose of carrying into effect the provisions of that chapter. Section 133A of
the chapter dealing with miscellaneous matters enables the Government, for the
purpose of carrying into effect the provisions of the Act, to establish a motor
vehicles department, to appoint officers to the said department, to make rules,
inter alia, to regulate their functions and duties and name the authorities to
whom they shall be subordinate. In short, the Act is comprehensive and self contained;
the powers and duties of the various authorities and their relationship inter
se are all laid down and regulated by the provisions of the Act and the rules
made there under.
With this background let us look at the
relevant provisions of ch. IV of the Act and the rules made there under.
Chapter IV deals with " Control of
Transport Vehicles ".
Under s. 42, no owner of a transport vehicle
shall use or permit the use of the vehicle in 783 any public place save in
accordance with the conditions of a permit. Section 43 confers power on the
State Government to control road transport. Section 43A which was inserted in
the Act by Act 20 of s, 1948 enables the Government to issue administrative
directions to Transport Authorities created under the Act. Section 44 empowers
the State Government to constitute for the State a State Transport Authority
and Regional Transport Authorities for different regions to exercise and
discharge throughout their respective areas the powers and functions specified
in the Act. Section 44A, which was inserted by Madras Act 20 of 1948, further
empowers the State Government to appoint a State Transport Commissioner and by
notification authorize him or any officer subordinate to him to exercise and
discharge in lieu of any other authority prescribed by or under the Act such
powers and functions as may be specified in the notification. The duties and
functions of this Authority and its subordinate are confined only to notified
statutory functions and duties imposed on other Authorities under this Act in
whose place they are appointed. Sections 45 to 56 lay down the procedure to be
followed by the Regional Transport Authority in issuing permits in respect of
stage, contract, private and public carriages and also confer powers on the
said Transport Authority to vary, cancel all or any of the conditions attached
to such permits. Section 58 deals with the duration and renewal of permits and
s. 59 gives the statutory conditions attached to a permit.
Section 60 enables the Transport Authority
which granted a permit to cancel or to suspend it on any of the grounds
mentioned therein. Section 64 confers a right of appeal on an aggrieved party
to prefer an appeal against an order of the State or Regional Transport
Authority within the prescribed time to the prescribed Authority in respect of
matters mentioned therein. Section 64A gives revisional jurisdiction to the
State Government to call for the records of any order passed by any Authority
or officer subordinate to it for the purpose of satisfying itself as to the
legality, regularity or propriety of such order. Section 68 confers on the
State Government power to make rules 784 for the purpose of carrying into
effect the provisions of this chapter; and under sub-s. (2)(a) thereof the
State Government is authorized to make rules in respect of the period of
appointment and the terms of appointment of and the conduct of business by
Regional and State Transport Authorities and the reports to be furnished by
them.
This chapter, therefore, follows the same
pattern adopted in the Act. It creates Authorities, defines their powers and
duties, and provides for the regulation of their relationship inter se.
In exercise of the powers conferred under s.
44, the State Government constituted in the State a State Transport Authority
and also Regional Transport Authorities and appointed members to the said
bodies. The constitution of the said bodies was changed from time to time. At
the crucial period, i.e., on July 19, 1954, the State Transport Authority was
described as the Central Road Traffic Board (C. R. T. B.) and its Chairman was
the State Transport Commissioner. So too, the State Government appointed
Regional Transport Authorities, described as Boards, and from time to time
changed their composition. During the period in question the Regional Transport
Authorities consisted of District Magistrate, District Superintendent of
Police, the President, District Board, and one non-official person to be
nominated by the Government.
It also appears from the judgment of
Krishnaswamy Naidu, J., who referred the question to the full bench of the
Madras High Court, that the State Government established a Motor Vehicles Department
under s. 133A of the Act and appointed Regional Transport Officers. Their
powers are regulated by the rules made under the Act. Under r. 124, the
Regional Transport Officer is made the Secretary and executive officer of the
Board, i.e., the Regional Transport Authority. Rules 131, 134, 134B and 135
define the duties to be performed by the Secretary. Rule 134A enables the
Board, for the prompt and convenient discharge of business, to delegate to the
Secretary functions described under that rule. Rule 134A authorizes the Board
to give general instructions as 785 to the manner in which the Secretary shall
exercise the powers delegated to him. Under r. 147, appeals lie to the Central
Board against particular orders of the Secretary and the Board. These rules
positively establish that the Regional Transport Officer is subordinate to the
Board, i.e., the Regional Transport Authority. He has statutory duties and
functions and in discharge of those duties he is under the control of the Board
and in the matter of some quasi judicial duties an appeal lies to the Central
Road Traffic Board. It is, therefore, manifest that the Regional Transport
Officer is appointed by the Government in exercise of its powers under s. 133A
of the Act, that his duties are statutorily defined and that under the rules he
is made subordinate to the Board, i.e., the Regional Transport Authority.
Now coming to the State Transport
Commissioner, the State Government is authorized to appoint him under s. 44A of
the Act, which was inserted in the year 1948. He is also a statutory authority.
Both the parties proceeded on the basis that the State Government established a
Motor Vehicles Department and the Commissioner was one of its officers.
The division bench of the Madras High Court
which referred the question to the full bench also accepted the fact that the
Madras Government created a Motor Vehicles Department under s. 133A of the Act
and the Commissioner is an officer of that Department. The full bench of the
Andhra Pradesh High Court also founded its conclusion on the fact that "
the Transport Commissioner is constituted the head of the department of
transport which is the Motor Vehicles Department ". That apart, cl. (m)
which was inserted in r. 3 on December 20, 1955, clarifies the position by
enacting that the Transport Department is the Motor Vehicles Department set up
under s. 133A of the Act. It is, therefore, clear that the State has created a
Motor Vehicles Department and appointed the Commissioner as an officer in that
Department. Neither s. 44 nor s. 133A makes any officer subordinate to the said
Commissioner. Section 44 only enables the State Government to confer on him
powers and duties and functions entrusted to any Authority under the Act, 786
No notification issued by the Government authorizing the Commissioner to
discharge any of the functions specified in the Act has been placed before us.
No ,rule has been framed under sub-s. (3) of s. 133A of the Act making the
Regional Transport Authority subordinate to the State Transport Commissioner.
The only material available to us is that the Commissioner was appointed by the
State Government as Chairman of the Central Road Traffic Board. Under the Act
and the rules framed there under, there are certain statutory duties and
functions allotted to the Central Road Traffic Board, but no separate powers
are conferred on the Chairman of the Board apart from hi$ being a part of the
Board. It is, therefore, clear that under the Act and the rules framed there
under the Regional Transport Officer is not made subordinate to the State
Transport Commissioner.
But what is contended is that though between
the Commissioner and the Regional Transport Officer, there is no statutory
subordination, the latter was made by the Government administratively subordinate
to the Commissioner.
There is no order of the Government making
the Regional Transport Officer a subordinate to the Commissioner placed before
us. The only material is a notification issued by the Government dated October
20,1955, on which reliance is placed to indicate that the Regional Transport
Officer is subordinate to the Commissioner. But obviously it has no relevance
to the present enquiry, for the notification was issued on a date subsequent to
the date of the impugned order. If there was an earlier notification, the State
or the appellant would have produced it, but from its nonproduction it may be
assumed that there was no such notification. If that is excluded, the only two
remaining documents are, (i) The Madras Financial Code giving a list of the
heads of departments of the Madras State, and (ii) the Half-Yearly List of
Gazetted Officers in the Madras State Government. The former shows the
Transport Commissioner as one of the heads of departments. It does not in
itself show that the Regional Transport Officer is his subordinate. The mere
mention of the Regional Transport Officers in the list of Gazetted 787 Officers
in the department is not decisive of the fact that they are subordinate to the
Transport Commissioner. In this state of record, it is not possible to hold
that even administratively the Regional Transport Officer is subordinate to the
State Transport Commissioner.
I shall assume for the purpose of this case
that the Regional Transport officer is treated by the Government as a
subordinate Officer to the Commissioner. The question in this case is whether
such administrative treatment in utter disregard of the statutory provisions
can confer upon the Regional Transport Officer a right to function under s. 44A
of the Act.
The foregoing provisions relevant to the
present enquiry may be summarised thus: The Act is a self contained one. Under
specific provisions it empowers the Government to constitute a State Transport
Authority, the Regional Transport Authorities and a State Transport
Commissioner. Section 44A does not authorize the Government to appoint
subordinate officers to the Commissioner, but only enables it to confer
statutory powers on an officer subordinate to the Commissioner. In exercise of
the powers conferred under s. 133A of the Act, the State Government created a
Motor Vehicles Department and appointed in that Department a Commissioner,
Regional Transport officers and others. But the State Government has not made
any rules making the Regional Transport officer a subordinate to the
Commissioner.
Indeed, the rules made him the executive
officer of the Regional Transport Board indicating thereby that he is a
subordinate to the Board. It is, therefore, manifest that either under the
Statute or under the rules made there under the Regional Transport Officer is
not subordinate to the Commissioner.
Learned Attorney-General contends that s.
133A of the Act only confers a discretionary power on the State Government to
make rules indicating the authorities to which the officers appointed shall be
subordinate and, therefore, it is not bound to do so. Assuming that the word
" may " in the section confers a discretionary power on the State
Government, is it permissible to contend that the Government is entitled to do
788 administratively what it is empowered to do by rules ? If the Government
decides not to exercise the powers conferred under sub-s. (3) of s. 133A, it
may withhold from doing so;
but it cannot bring about the same result
administratively, i.e., by a process other than by way of rules. If the
contention were accepted, it would be attributing to the legislature an
intention to make an unnecessary Provision.
If the State Government could act
administratively in regard to matters covered by sub-s. (3), why should the said
subsection be made at all'? Either by making rules or without making rules, the
Government can achieve the same object. There is an understandable reason for
the legislative preference to a statutory rule. Statutory rules are placed
before Parliament for its approval, while administrative regulations are
entirely in the discretion of the executive government. Statutory authorities
under the Act are empowered to exercise powers affecting valuable rights of
citizens. The power to issue permits and modify the conditions thereof affects
large interests and it may well be that the legislature in insisting upon
statutory rules seeks to exercise supervision to prevent abuse of powers. The
only reasonable construction of s. 133A is that the State can create subordination
of one officer to another by only statutory rules and not otherwise. I would,
therefore, hold that if the Government seeks to make a particular officer of
the Department subordinate to another, it can only do so by making a statutory
rule under sub-s.
(3) of s. 133A of the Act.
The result is that negatively there is no
statutory rule making the Regional Transport Officer subordinate to the State
Transport Commissioner, and positively there is a rule making him subordinate
to the Regional Transport Authority (R.T.A.). If that be so, I must hold that
the Regional Transport officer is not a subordinate to the State Transport
Commissioner within the meaning of s. 44A of the Act.
In the result the appeal fails and is
dismissed with costs.
Appeal dismissed.
789 Order of Court.
In view of the majority judgment of the
Court, the appeal is allowed with costs in this Court, and the case remanded to
the High Court for a re-hearing by a single Judge. Costs in the High Court will
abide the result.
Appeal allowed.
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