B. Rajagopala Naidu Vs. State
Transport Tribunal & Ors  INSC 58 (5 March 1964)
05/03/1964 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA SIKRI, S.M.
CITATION: 1964 AIR 1573 1964 SCR (7) 1
RF 1966 SC1366 (1,4,6,7) R 1969 SC 48 (10) R
1970 SC1241 (6) R 1972 SC2250 (14,15,16,19,20) R 1974 SC1117 (4) R 1974 SC2297
(5) R 1977 SC 416 (3)
Motor Vehicles Act, 1939 (4 of 1939), s. 43A
(as inserted by Madras Amending Act 20 of 1948) Madras G.O. No. 1298, dated
April 28, 1956-Government order prescribing the award of marks-If direction to
Regional Transport Authority in the discharge of its quasi-judicial
function-Section 43A-Scope of--if authorises only administrative directions.
The appellant is a bus operator in the State
of Madras. On an invitation for applications for the grant of two stage
carriage permits he submitted his applications along with many others. The
State Transport Authority considered the merits of the application awarding
marks in accordance with the principles prescribed by Madras G.O. No. 1298,
dated April 28, 1956 issued under s. 43A of the Motor Vehicles Act, 1939
inserted by the Madras Amending Act 20 of 1948.
The Transport Authority on this basis granted
the two permits to the appellant. Against this order a number of appeals were
filed by some of the unsuccessful applicants including respondents Nos. 2 and 3
in the present appeal.
The Appellate Tribunal re-allotted marks in
accordance with the above G.O. and respondents 2 and 3 having secured the
maximum number of marks were granted the permits. On the rejection of a
petition under Art. 226 of the Constitution and after appealing without success
to a Division Bench the appellant applied for a certificate to appeal to this
Court which rejected. The present appeal was filed on special leave granted by
It was contended on behalf of the appellant
before this Court that since Madras G.O. No. 1298, dated April 28, 1956,
purports to issue direction to the Transport Authority in the discharge of its
quasi-judicial functions it is beyond the powers conferred by s. 43A of the Motor
Vehicles Act which authorises only the issue of directions to the said
authority in the discharge of its administrative functions and therefore it is
Held, (i) Section 43A confers power on the
State Government to issue orders and directions to the State Transport
Authority only in relation to its administrative functions.
M/s. Raman and Raman v. The State of Madras
 2 S.C.R.
227, relied on.
(ii)It is well settled that ss. 47, 48, 57,
60, 64 and 64A deal with quasi-judicial functions and when the transport
authorities are dealing with applications for permits and evaluating the
respective claims of the parties, the transport authorities are discharging
quasi-judicial functions and their orders are quasi-judicial orders subject to
the jurisdiction of the High Court under Art. 226.
L/P(D)1SCI-1 2 New Prakash Transport Co. Ltd.
v. Suwarna Transport Co. Ltd.
 S.C.R., 98 M/s Raman and Raman Ltd. v.
State of Madras,  2 S.C.R. 227, B. Abdulla Rowther v. State Transport
Appellate Tribunal, Madras, A.I.R. 1959, S.C. 896, relied on.
(iii) In interpreting s. 43A it is legitimate
to assume that the legislature intended to respect the basic and elementary
postulate of the, rule of law that in exercising their authority and
discharging their quasi-judicial functions, the tribunals constituted under the
Act must be left absolutely free to deal with the matter according to their
best judgment. It is of the essence of fair and objective administration of law
that the decision of judges or tribunals must be absolutely unfettered by any
extraneous guidance by the executive or administrative wing of the State.
(iv) The impugned order is outside the
purview of s. 43A inasmuch as it purports to give directions in respect of
matters which have been entrusted to the tribunals constituted under the Act
and which have to be dealt with by them in quasi-judicial manner.
(v) The decision of the appellate Tribunal is
solely based on the provisions of the impugned order and since the said order
is invalid, the decision is also bad.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 19 of 1964.
Appeal by special leave from the judgment and
order dated October 29, 1963, of the Madras High Court in Writ Appeal No. 214
S. Mohan Kumar amagalam, M. N. Rangachari, R.
K. Garg, M. K. Ramamurthi, for the appellant.
R. Ganapathy Iyer, for respondents Nos. 2 and
A. Ranganadham Chetty and A. V. Rangam, for
respondent No. 4.
M. C. Setalvad, N. C. Krishna Iyengar and 0.
C. Mathur, for Intervener.
March 5, 1964. The judgment of the Court was
delivered byGAJENDRAGADKAR, C.J.-The short but important point of law which has
been raised for our decision in this appeal by special leave is whether G.O.
No. 1298 issued by the Government of Madras on April 28, 1956 in exercise of
its powers conferred by s. 43A of the Motor Vehicles Act, 1939 (Central Act IV
of 1939) (hereinafter called the Act) inserted by the Madras Amending Act 20 of
1948, is valid.
Mr. Mohan Kumaramangalam who appears for the
appellant contends that the impugned Government order is invalid for the simple
reason that it is outside the purview of s. 43A.
The impugned order was issued as early as
1956 and since then, its validity 3 has never been impeached in judicial
proceedings. Litigation in regard to the grant of permits under the relevant
provisions of the Act has figured prominently in the Madras High Court in the
form of writ petitions invoking the said High Court's jurisdiction under Art.
226 of the Constitution and several aspects of the impugned order have come to
be examined. The echoes of such litigation have frequently been heard in this
Court and this Court has had occasion to deal with the impugned order, its
character, its scope and its effect-, but on no occasion in the past, the
validity of the order appears to have been questioned. The legislative and
judicial background of the order and the course of judicial decisions in
regards to the points raised in the enforcement of this order would prima facie
and at the first blush suggest that the attack against the validity of the
order may not be well founded and that would tend to make the initial judicial
response to the said challenge more hesitant and reluctant. But Mr.
Kumaramangalam contends that s. 43A under which the order purports to have been
passed would clearly show that the said order is outside the purview of the
authority conferred on the State Government and is therefore invalid. It is
obvious that if this contention is upheld, its impact on the administration of
the system adopted in the State of Madras for granting permits under the Act
would be very great and so though the question lies within a narrow compass, it
needs to be very carefully examined. The facts which lead to the present appeal
conform to the usual pattern of the permit litigation in which the grant or
refusal to grant a permit is challenged under the writ jurisdiction of the High
Court under Art. 226.
The appellant B. Rajagopala Naidu is a bus
operator in the State of Madras and he runs a number of buses on various
routes. On June 26, 1956, the State Transport Authority by a notification
invited applications for the grant of two stage carriage permits on the route
Madras to Krishnagiri.
The buses on this route were to be run as
The appellant and 117 bus operators including
respondents 2 and 3 D. Rajabahar Mudaliar, proprietor of Sri Sambandamoorthy
Bus Service and K. H. Hanumantha Rao, proprietor of Jeevajyoti Bus Service
respectively, submitted applications for the two permits in question. The State
Transport Authority considered the said applications on the merits. In doing
so, it proceeded to award marks in accordance with the principles prescribed by
the impugned order and came to the conclusion that the appellant satisfied the
requirements enunciated by the State Transport Authority for running an
efficient bus service on this long route, and so, it granted the two permits to
the appellant on May 8, 1958.
L/P(D)1SCI-1(a) 4 Against this decision, 18
appeals were preferred by the unsuccessful applicants including respondents 2
and 3. All these appeals were heard together by the State Transport Appellate
Tribunal, Madras in June 1959. It appears that before the appeals were thus
heard, the State Government had superseded the principles enunciated in the
order in so far as they related to the grant of stage carriage permits and had
issued another direction under s. 43A known as G.O. 2265 on August 9, 1958.
Incidentally, it may be added that by this order, different criteria had been
prescribed for selection and a different marking system had been devised.
The Appellate Tribunal considered the claims
of the rival bus operators and allotted marks in accordance with the principles
laid down by the earlier order. As a result, respondents 2 and 3 secured the
highest marks and their appeals were allowed, the order under appeal was set
aside and two permits were granted to them. This order was passed on July 4,
The appellant then invoked the jurisdiction
of the Madras High Court under Art. 226 of the Constitution by this writ
petition No. 692 of 1959. In his writ petition the appellant challenged the
validity of the order passed by the Appellate Tribunal on several grounds. One
of them was that the impugned order on which the decision of the Appellate
Tribunal was based, was invalid. This plea along with the other contentions
raised by the appellant failed and the learned Single Judge who heard his writ
petition dismissed the petition, on October 18, 1962. The appellant then
challenged the correctness of this decision by a Letters Patent Appeal No. 214
of 1962 before a Division Bench of the said High Court. The Division Bench,
however, agreed with the view taken by the Single Judge and dismissed the
Letters Patent Appeal preferred by the appellant. The appellant then moved the
said High Court for leave, but failed to secure it, and that brought him here
with an application for special leave which was granted on November 14, 1963.
It is with this special leave that the appellant has brought this appeal before
us for final disposal.
Before dealing with the points raised by the
appellant, it is necessary to consider the background of the impugned order,
and that takes us to the decision of the Madras High Court in Sri Rama Vilas
Service Ltd. v. The Road Traffic Board, Madras, by its Secretary(1). In that
case, the appellant had challenged the validity of a Government order No. 3898
which had been issued by the Madras Government on December 9, 1946. This order
purported to direct the transport authorities to issue only temporary permits
as the Government intended to nationalise motor transport.
Accordingly, instruction No. 2 in the said
order had provided that when (1) (1948) 1 M.L.J. 85.
5 applications were made for new routes or
new timings in existing routes, then small units should be preferred to old
ones. In accordance with this instruction, when the application for permit made
by the appellant, Sri Rama Vilas Service was rejected, the order stated that it
so rejected in the interests of the public generally under s. 47(1)(a) of the
Act. The appellant preferred ,-in' appeal against the order to the Central
Board namely the Provincial Transport Authority which had been constituted by
the Government under s. 44 of the Act. His appeal failed and so, he moved the
Madras High Court under s. 45 of the Specific Relief Act for an order directing
the respondent the Road Traffic Board, Madras--to consider the application of
the appellant in accordance with the provisions of the Act and the rules made
there under for renewal of the permit for plying buses. The High Court held
that G. O. No. 3898 was in direct conflict with the proviso to s. 58 sub-s. (2)
of the Act, and so, was invalid. This decision showed that there was no
authority or right in the State Government to issue instructions such as were
contained in the said Government order. In reaching this decision, the High
Court emphasised the fact that the Central Transport Board and the Regional
Transport Board were completely independent of the Government except that they
must observe the notifications made pursuant to s. 43 of the Act. It was
conceded that if and when the Government acted as an Appellate Tribunal, it had
judicial functions to discharge. But these functions did not include the power
to give orders to any Board which was seized of an application for renewal of
permits. That is how it was established by this decision that as the Act stood,
the State Government had no authority to issue directions as to how
applications for permits or their renewal should be dealt with by the Tribunals
constituted under the Act. This judgment was pronounced on November 19, 1947.
As a result of this judgment, the Madras
Legislature amended the Central Act by Act XX of 1948 which came into force on
December 19, 1948. Amongst the amendments made by this Act was the insertion of
s. 43A with which we are concerned in the present appeal. This section clothed
the State Government with powers to issue certain directions and orders. As we
have already indicated, the point which we are, considering in the present
appeal is whether the impugned order falls within the purview of the power and
authority conferred on the State Government by this section.
We will read this section later when we
address ourselves to the question of its construction.
The amendment of the Central Act led to the
next round of controversy between the bus operators and the State Government
and that resulted in the decision of the Madras High 6 Court in C.S.S. Motor
Service Tenkasi v. The State of Madras and another(1). In that case, the
validity of several provisions of the Act including the provisions introduced
by the Madras Amendment Act were challenged. It will be recalled that at the
time when this challenge was made, the Constitution had come into force and the
Motor Service urged before the High Court
that under Art.
19(1)(g) it had a fundamental right to ply
motor vehicles on the public pathways and the impugned provisions of the Act
invaded its aforesaid fundamental right and were not justified by Art. 19(6).
The High Court elaborately considered the first part of the contention and it
took the view, and we think rightly, that a citizen has a fundamental right to
ply motor vehicles on the public pathways for hire or otherwise and that if any
statutory provision purports or has the effect of abridging such fundamental
right, its validity would have to be judged under the relevant clause of Art.
19. Proceeding to deal with the dispute on this basis, the High Court examined
the validity of the several impugned provisions of the Act. In regard to s.
43A, the High Court came to the conclusion that the said section was valid though
it took the precaution of adding that the orders passed thereunder might be
open to challenge as unconstitutional. It is, however, necessary to emphasise
that the main reason which weighed with the High Court in upholding the
validity of this section was that the High Court was satisfied that the said
section was "intended to clothe the Government with authority to issue
directions of an administrative character." Thus, s. 43A was held to be
valid in this case and the correctness of this conclusion is not disputed
before us. In other words, we are dealing with the appellant's challenge
against the validity of the impugned order on the basis that s. 43A itself is
This judgment was pronounced on April 25,
Some years after this judgment was pronounced,
the impugned Government order was issued on April 28, 1956. This order
purported to issue instructions or directions for the guidance of the Tribunals
constituted under the Act. In fact, it refers to the judgment of the Madras
High Court in the case of C.S.S. Motor Service. It would appear that the Madras
Government wanted to give effect to the said decision by issuing appropriate
directions under its authority derived from s. 43A which was held to be valid.
The impugned order deals with five topics. The first topic has relation to the
instructions which had to be borne in mind whilst screening the applicants who
ask for permits. This part of the order provides that the applicants may be
screened and disqualified on one or more of the principles enunciated in cls. 1
to 4 in that part. The second part deals with the system of assigning marks to
(1) A.L.R. (1953) Mad. 304.
7 the several claimants, under four columns.
In laying down these principles, the impugned order intended to secure
precision in the disposal of claims for permits and to enable quick
consideration of the merits of such claimants. This part of the order, however,
made it clear that in cases where the system of marking worked unfairly the
Regional Transport Authority may ignore the marks obtained for reasons to be
stated. It is this' part of the order which has introduced the marking system
which has been the special feature of adjudication of claims for permits in the
State of Madras.
These two parts are described as
"A." in the Government order. Part 3 deals with the variation, or
extension of routes granted under the permits. Part 4 deals with the revision
of timings and Part 5 has reference to suspension or cancellation of permits.
That in brief is the nature of the directions issued by the impugned order.
After this order was issued and the Tribunals
constituted under the Act began to deal with applications for permits in
accordance with the principles prescribed by it, the decisions ,of the said
Tribunals came to be frequently challenged before the Madras High Court and
these disputes have, often been brought before this court as well. In these
cases, the character of the order passed by the Tribunal was examined, the
nature of the instructions issued by the impugned order was considered and the
rights of the parties aggrieved by the quasi-judicial decisions of the
tribunals also fell for discussion and decision. A question which was often
raised was whether it was open to a party aggrieved by the decision of the
Tribunal to contend that the said decision was based either on a
misconstruction of the impugned order or in contravention of it, and the
consensus of judicial opinion on this part of the controversy appears to be
that the proceedings before the Tribunals constituted under the Act are quasi judicial
proceedings and as such liable to be corrected under Art.
226 of the Constitution. It also appears to
be well established that the impugned order is not a statutory rule and has
therefore no force of law. It is an administrative or executive direction and
it is binding on the tribunals; it does not, however, confer any right on the
citizen and that means, that a citizen cannot be allowed to contend that a
misconstruction of the order or its contravention by any decision of the Tribunal
functioning under the Act should be corrected under Art. 226.
In M/s Raman and Raman Ltd. v. The State of
Madras and others(1), this Court by a majority decision held that s. 43A of the
Act as amended by the Madras Amendment Act, 1948 must be given a restricted
meaning and the jurisdiction it conferred on the State Government to issue
orders and directions must be confined to administrative functions. An order or
(1)  2 S.C.R. 227.
8 direction made there under by the State
Government was consequently denied the status of law regulating rights of
parties. and was treated as partaking of the character of an administrative
order. Similarly, in R. Abdulla Rowther v. The State Transport Appellate
Tribunal, Madras and others(1) this Court held by a majority decision that the
orders and directions issued under s. 43A were merely executive or
administrative in character and their breach, even if patent, would not justify
the issue of a writ of certiorari.
It was also observed that though the orders
were executive and did not amount to statutory rules, they were rules binding
on the transport authorities for whose guidance they have been issued, but that
did not confer any right on the citizen and so a plea that a contravention of
the orders should be corrected by the issue ,of an appropriate writ was
rejected. Such contravention, it was held, might expose the Tribunal to the
risk of disciplinary or other appropriate action, but cannot entitle a citizen
to make a complaint under Art. 226. It is necessary to emphasise that in both
these cases no argument was urged that the impugned order was itself invalid
and should have been ignored by the Tribunals exercising quasi-judicial
authority under the relevant provisions of the Act. The Court was no doubt called
upon to consider the character of the impugned order and some of the reasons
given in support of the conclusion that the impugned order is administrative or
executive seem to suggest that the said order would, prima facie, be inconsistent
with the provisions of s. 43A which received a narrow and limited construction
from the court.
Nevertheless, since the point about the
validity of the impugned order was not raised before the court, this aspect of
the question was not examined and the discussion and decision proceeded on the
basis that the impugned order was valid. Now that the question has been raised
before us, it has become necessary to examine the validity of the impugned
Before proceeding to examine the scope and
effect of the provisions of s. 43A, it is necessary to bear in mind two general
considerations. The first broad consideration which is relevant has relation to
the scheme of the Act in general and the scheme of Ch. IV in particular. The
Act consists of 10 chapters and deals mainly with administrative problems in
relation to motor vehicles. Chapter 11 deals with licensing of drivers of motor
vehicles. Chapter IIA deals with licensing of conductors of State carriages and
Chapter III with registration of motor vehicles. Chapter IV is concerned with
the control of transport vehicles and in this chapter are included the relevant
provisions for the applications for grant of permits, the consideration of
those applications and other allied topics. Chapter IVA includes the provisions
relating to (1) A.I.R. (1959) S.C. 896.
9 State Transport Undertakings. Chapter V
addresses itself to the construction, equipment and maintenance of motor vehicles,
Chapter VI deals with the control of traffic, Chapter' VII has reference to
motor vehicles temporarily leaving or visiting India, Chapter VIII with the
question of insurance of motor vehicles against third party risks, Chapter IX
prescribes offences, penalties and procedures to try the offences -and Chapter
X contains miscellaneous provisions.
This scheme shows that the hierarchy of
transport authorities contemplated by the relevant provisions of the Act is
clothed both with administrative and quasi-judicial functions and powers. It is
well settled that ss. 47, 48, 57, 60, 64 and 64A deal with quasi-judicial
powers and functions. In other words, when applications are made for permits
under -the relevant provisions of the Act and they are considered ,on the
merits, particularly in the light of the evaluation of the claims of the
respective parties, the transport authorities are exercising quasi-judicial
powers and are discharging quasi judicial functions, and so, orders passed by
them in exercise of those powers and in discharging those functions are quasi judicial
orders which are subject to the jurisdiction of the High Court under Art.
226, vide New Prakash Transport Co. Ltd. v.
New Suwarna Transport Co. Ltd.(1) and M/s Raman and Raman Ltd. v. The State of
Madras and others(3) and R. Abdulla Rowther v. The State Transport Appellate
Tribunal Madras and others(3) so that when we examine the question about the
validity of the impugned order, we cannot lose sight of the fact that the
impugned order is concerned with matters which fall to be determined by the
appropriate transport authorities in exercise of their quasi-judicial powers
and in discharge of their quasi-judicial functions.
The other broad consideration relevant in
dealing with the present controversy is that there are three sets of provisions
under the Act which confer legislative, judicial and administrative powers
respectively on the State Government.
Section 67 which confers on the State
Government power to make rules as to stage carriages and contract carriages and
s. 68 which confers power on the State Government to make rules for the
purposes of Ch. IV are obviously legislative powers, and in exercise of these
powers, when the rules are framed, they become statutory rules which have the
force of law. Naturally, the exercise of these legislative powers is controlled
by the safeguard provided by s. 133 of the Act.
This latter section requires that when power
is exercised by the State Government to make rules, it is subject to the
condition that the rules must be previously published before they are (1)
 S.C.R. 98 p. 118.  2 S.C.R. p. 227.
A.I.R. (1959) S.C. 896.
10 made. That is the effect of s. 133(i).
Sub-cl. (2) of s. 133 provides that all rules made under this Act shall be
published in the Official Gazette after they are made and shall, unless some
later date, is appointed, come into force on the date of such publication.
Clause 3 is important. It provides that all rules made under the Act shall be
laid for not less than fourteen days before the appropriate Legislature as soon
as possible after they are made, and shall be subject to such modifications as
the appropriate Legislature may make during the session in which they are so
laid. So that if statutory rules are made by the Government in exercise of
legislative powers conferred on it by ss. 67 and 68, they are subject to the
control of the appropriate legislature which can make changes or modifications
in the said rules if it is thought necessary or expedient to do so.
Publication before the rules are made and
publication after they are made also afford another statutory safeguard in that
behalf. That is the nature of the legislative power conferred on the State
Section 64A confers judicial power on the
State Transport Authority, because the said authority is given revisional
jurisdiction to deal with orders therein specified, subject to the limitations
and conditions prescribed by the two provisos to the said section.. This is a
clear provision conferring judicial power on the State Transport Authority.
Along with the legislative and judicial
powers which have thus been conferred, there is the administrative power conferred
on the State Government by s. 43A. Section 43A reads thus:
,,The State Government may 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 a
Regional Transport Authority;
and such Transport Authority shall give
effect to all such orders and directions".
It is the construction of this section which
is the basis of the challenge to, the validity of the impugned rules in the
present appeal. It may be conceded that there are some words in the section
which are against the construction for which Mr. Kumaramangalam contends. The
words "in respect of any matter relating to road transport" are
undoubtedly wide enough to take in not merely administrative matters but also
matters which form the area of the exercise of quasijudicial authority by the
Tribunals constituted under the Act. Prima facie, there are no words of limitation
in this clause and it would, therefore, be possible to take the view that these
are matters which are scrutinised by the appropriate authorities in exercising
their quasi-judicial jurisdiction. Similarly, the State Transport Authority and
the Regional Transport 11 Authority to which reference is made in this section
are clothed not only with administrative power but also with quasijudicial
jurisdiction so that reference to the two authorities and reference to any
matter relating to road transport would indicate that both administrative and
quasijudicial matters come within the sweep of s. 43A.
But there are several other considerations
which support Mr. Kumaramangalam's construction. The first is the setting and
the context of the section. As we have already seen, this section has been
introduced by the Legislature in response to the decision of the Madras High
Court in C.S.S. Motor Service case(1) and that would indicate that the Madras
Legislature intended to confer on the State Government power to issue
administrative orders or directions of a general character. Besides, the two
preceding sections s. 42 and s.
43 and s. 44 which follows support the
argument that the field covered by s. 43A like that covered by ss. 42, 43 and
44 is administrative and does not include the area which is the subject matter
of the exercise of quasi-judicial authority by the relevant Tribunals.
Then again, the use of the words 'orders and
directions' would not be appropriate in regard to matters which fall to be considered
by authorities exercising quasi-judicial powers. These words would be
appropriate if they have reference to executive matters.
And lastly, the provision that the relevant
transport authority shall give effect to all orders and directions issued under
s. 43A would be clearly inappropriate if the instructions issued under the said
section are meant for the guidance of quasi-judicial bodies. If the direction
is issued by the appropriate Government in exercise of its powers under s. 43A
and it is intended for the guidance of a tribunal discharging its
quasi-judicial functions, it is hardly necessary to say that the authority
shall give effect to such directions. Section 43A being valid, if the orders
and directions of a general character having the force of law can be issued
within the scope of the said section, then such orders or directions would by
themselves be binding on the transport authorities for whose guidance they are
and it would be superfluous to make a
specific provision that they are so binding. On the other hand, if the orders
and directions are in the nature of administrative orders and directions, they
do not have the force of statutory rules and cannot partake of the character of
provisions of law, and so, it may not be inappropriate to that the said orders
and directions shall be followed by the appropriate tribunals. Therefore, it
seems to us that on a fair and Leasonable construction of s. 43A, it ought to
be held that the said section authorises the State Government -.R.  Mad.
304 12 to issue orders and directions of a general character only -tin respect
of administrative matters which fall to be, dealt with by the State Transport
Authority or Regional Transport Authority under the relevant provisions of the
Act in their administrative capacity.
In reaching this conclusion, we have been
influenced by certain other considerations which are both relevant and
material. In interpreting s. 43A, we think, it would be legitimate to assume
that the legislature intended to respect the basic and elementary postulate of
the rule of law, that in exercising their authority and in discharging their
quasi-judicial function, the tribunals constituted under the Act must be left
absolutely free to deal with the matter according to their best judgment. It is
of the essence of fair and objective administration of law that the decision of
the Judge or the Tribunal must be absolutely unfettered by any extraneous
guidance by the executive or administrative wing of the State. If the exercise
of discretion conferred on a quasi-judicial tribunal is controlled by any such
direction, that forges fetters on the exercise of quasi-judicial authority and
the presence of such fetters would make the exercise of such authority
completely inconsistent with the well-accepted notion of judicial process. It
is true that law can regulate the exercise of judicial powers. It may indicate
by specific provisions on what matters the tribunals constituted by it should
adjudicate. It may by specific provisions lay down the principles which have to
be followed by the Tribunals in dealing with the said matters. The. scope of
the jurisdiction of the Tribunals constituted by statute can well be regulated
by the statute and principles for guidance of the said tribunals may also be
prescribed subject of course to the inevitable requirement that these
provisions do not contravene the fundamental rights guaranteed by the
Constitution. But what law and the provisions of law may legitimately do cannot
be permitted to be done by administrative or executive orders. This position is
so well established that we are reluctant to hold that in enacting s. 43A the
Madras Legislature intended to confer power on the State Government to invade
the domain of the exercise of judicial power. In fact, if such had been the
intention of the Madras Legislature and had been the true effect of the
provisions of s. 43A, s. 43A itself would amount to an unreasonable
contravention of fundamental rights of citizens and may have to be struck down
as unconstitutional. That is why the Madras High Court in dealing with the
validity of s. 43A had expressly observed that what s. 43A purported to do was
to clothe the Government with authority to issue directions of an
administrative character and nothing more.
It is somewhat unfortunate that though
judicial decisions have always emphasised this aspect of the matter, occasion
did not arise so long 13 to consider the validity of the Government order which
on the construction suggested by the respondent would clearly invade the domain
of quasi-judicial administration.
There is another consideration which is also
important. If s. 43A authorises the State Government to issue directions or
orders in that wide sense, s. 68 would become redundant and safeguards so elaborately
provided by s. 133 while the State Government purports to exercise its
authority under s. 68, would be meaningless. If orders and directions can be
issued by the State Government which are not distinguishable from statutory
rules, it is difficult to see why s. 68 would have dealt with that topic
separately and should have provided safeguards controlling the exercise of that
power by s. 133.
It is likewise significant that the
directions and orders issued under s. 43A are not required to be published nor
are they required to be communicated to the parties whose claims are affected
by them. Proceedings before the Tribunals which deal with the applications for
permits are in the nature of quasi judicial proceedings and it would, indeed,
be very strange if the Tribunals are required to act upon executive orders or
directions issued under s. 43A without conferring on the citizens a right to
know what those orders are and to see that they are properly enforced. The very
fact that these orders and directions have been consistently considered by
judicial decisions as administrative or executive orders which do not confer
any right on the citizens emphatically brings out the true position that these
orders and directions are not statutory rules and cannot therefore seek to
fetter the exercise of quasi-judicial powers conferred on the Tribunals which
deal with applications for permits and other cognate matters.
It is, however, urged that the principles
laid down in the impugned order are sound principles and no challenge can be
made to the validity of the order when it is conceded that the order enunciates
very healthy and sound principles.
This order, it is argued, can be considered
as expert opinion the assistance of which is afforded by the State Government
to ,he Tribunals dealing with the question of granting permits. We are not
impressed by this argument.
It is not the function of the executive to
assist quasijudicial Tribunals by issuing directions in the exercise of its
powers conferred under s. 43A. Besides, if s. 43A is valid and an order which
is issued under it does not fall outside its purview, it would be open to the
State Government to issue a direction and require the Tribunal to follow that
direction unquestionably, in every case. It is true that in regard to the
marking system evolved by the impugned rule, liberty is left to the Tribunal
not to adopt that system for reasons to be recorded by it. This liberty in
practice 14 may not mean much; but even theoretically, if the impugned order is
valid, nothing can prevent the State Government from issuing another order
requiring that the marking system prescribed by it shall always be followed. We
have already seen that s. 43A itself provides that effect shall be given to the
orders issued under it, and so, if an order issued under s. 43A itself were to
prescribe that it shall be followed, it will have to be followed by the
Tribunal and no exception can be made in that behalf. Therefore, we cannot
accept the argument strongly pressed before us by Mr.
Ganapathy Iyer on behalf of respondent No. 1
that the validity of the order cannot be challenged on the ground that the
principles laid down by it are sound and healthy.
We have, therefore, come to the conclusion
that the impugned order is outside the purview of s. 43A inasmuch as it
purports to give directions in respect of matters which have been entrusted to
the Tribunals constituted under the Act and which have to be dealt with by
these Tribunals in a quasi-judicial manner. We cannot overlook the fact that
the validity of the Act particularly in reference to its provisions prescribing
the grant and refusal of permits, has been sustained substantially because this
important function has been left to the decision of the Tribunals constituted
by the Act and these Tribunals are required to function fairly and objectively
with a view to exercise their powers quasijudicially, and so, any attempt to
trespass on the jurisdiction of these Tribunals must be held to be outside the
purview of s. 43A.
We are conscious of the fact that the
impugned order was issued after and presumably in response to the decision of
Madras High Court in the case of C.S.S. Motor Service(1) though it Would appear
that what the High Court had suggested was presumably the making of the rules
under s. 68 of the Act. It cannot also be disputed that the main object of the
State Government in issuing this order was to avoid vagaries, and introduce an
element of certainty and objectivity, in the decision of rival claims made by
applicants in respect of their applications for permits. It may have been
thought by the State Government that if the Tribunals are allowed to exercise
their discretion without any guidance, it may lead to inconsistent decisions in
different areas and that may create dissatisfaction in the public mind. It does
appear, however, that in some other States the problem of granting permits has
been resolved without recourse to the marking 15 system. But apart from that,
even if it is assumed that the, marking system, if properly applied, may make
the decisions in regard to the grant of permits more objective, fair and
consistent, we do not see how that consideration can assist the decision of the
problem raised before us If the State Government thinks that the application of
some kind of marking system is essential for a fair administration of the Act,
it may adopt such course as may be permissible under the law.
Section 47(1)(a) requires inter alia that the
interests of the public generally have to be borne in mind by the Regional
Transport Authority in considering applications for stage carriage permits. The
said section refers to other matters which have, to be borne in mind. It is
unnecessary to indicate them for our present purpose. The Legislature may amend
s. 47 by indicating additional considerations which the Transport Authority has
to bear in mind; or the Legislature may amend s. 47 by conferring on the State
Government expressly and specifically a power to make rules in that behalf or
the State Government may proceed to make rules under s. 68 without amending s.
47. These are all possible steps which may be taken if it is thought that some
directions in the nature of the provisions made by the impugned order must be
issued. That, however, is a matter with which we are not concerned and on which
we wish to express no opinion. As this court has often emphasised, in
constitutional matters it is of utmost importance that the court should not
make any obiter observations on points, not directly raised before it for its decision.
Therefore, in indicating the possible alternatives which may be adopted if the
State Government thinks that the marking system helps the administration of the
Act, we should not be taken to have expressed any opinion on the validity of
any of the courses specified.
That leaves only one point to be considered.
Mr. Ganapathy Iyer urged that even though the impugned order may be valid, that
is no reason why the order passed by the Appellate Tribunal which has been
confirmed by the High Court in the present writ proceedings should be reversed.
He argues that what the Appellate Tribunal has done, is to act upon the
principles which are sound and the fact that these principles have been
enunciated by an invalid order should not nullify the decision of the Appellate
Thus presented, the argument is no doubt
plausible; but a closer examination of the argument reveals the fallacy
under-lying it. If the Appellate Transport Authority had considered these,
matters on its own without the compulsive force of the impugned order, it would
have been another matter-, but the order pronounced by the Appellate Authority
clearly and unambiguously indicates that it held and in a sense rightly, that
it was bound to follow the impugned order unless in the exercise of its option
it decided to depart from it and was prepared to record its reasons for
adopting that course. It would, We think, be idle to suggest that any Transport
Authority functioning in the State would normally refuse to comply with the
order issued by the State Government itself. Therefore, 16 we have no
hesitation in holding that the decision of the Appellate Tribunal is based
solely on the provisions of the impugned order and since the said order is
invalid, the decision itself must be corrected by the issue of a writ of
In the result, we allow the appeal, set aside
the order passed by the High Court in Writ Petition No. 692 of 1959 and direct
that the said Writ Petition be allowed. There would be no order as to costs
throughout. In accordance with this decision a writ of certiorari shall be
issued setting aside the order passed by the Appellate Tribunal and remanding
the matter to the Regional Transport Authority for disposal in accordance with