Sharif Ahmed & Ors Vs. Regional
Transport Authority, Meerut & Ors  INSC 204 (31 October 1977)
CITATION: 1978 AIR 47 1978 SCR (1) 749 1977
SCC (4) 551
CITATOR INFO :
F 1980 SC 258 (10) E 1980 SC 962
(6,21,23,34,44,67,103,105,114) F 1983 SC 67 (5) RF 1992 SC 604 (97)
Motor Vehicles (U.P. Amendment) Act,
1972-Grant of stage- carriage permits by Appellate Tribunal-Retrospective
change in law before actual issuance of permits, whether nullifies the
grant-Appeal lies only against grant, and not issuance of permits.
In 1972, purporting to do away with the limit
on the grant of stage-carriage permits, imposed by s. 47(c) of the Motor Vehicles
Act, 1939, the U. P. Government promulgated the U.P. Motor Vehicles Amendment
Ordinance (No. 9 of 1972) replaced by the Motor Vehicles (U.P. Amendment) Act,
Under s. 43-A(2) of the amended Act the State
Government issued a notification dated March 30, 1972, directing the Transport
Authorities to grant stage carriage permits to all eligible applicants. The
constitutional validity of the amended law and the notification was upheld by
the Supreme Court in Hans Raj Kehar & Ors. V. State of U.P. & Ors.
 2 SCR 916. The State transport
Appellate Tribunal, thereafter, allowed fifty pending appeals and granted
permits to ill the appellants. Pursuant to the Appellate Tribunal's order of
grant, the Regional Transport Authority was to issue the grantees permits, on
the fulfillment of certain conditions within a given time. The conditions were
duly fulfilled but the actual issue of permits was kept pending due to the
Appellate Tribunal's order being challenged through a writ petition in the High
Court. The petition was dismissed, but meanwhile the law was retrospectively
A question arose before this Court whether
the retrospective change in law had nullified the Appellate Tribunal's order?
Allowing the appeal the Court.
HELD : (1) The applications for grant of
permits were finally disposed of, and permits were granted by the order of the
Appellate Tribunal, what remained pending was a mere ministerial act of issuing
the permits, to be performed by the Regional Transport Authority or, its
delegate, on the applicants' complying with the terms of the order, within the
time granted by the Appellate Tribunal. The order of the Tribunal, when made,
was legal and with jurisdiction, The retrospective change in law had not the
effect of nullifying the order. [766 G-H] The Commissioner of Income-tax, Bihar
& Orissa v. Maharaja Pratap Singh Bahadur of Gidhaur  2 SCR 760,
Obiter dictum :
Retrospective change in law cannot justify
allowing the wrong to continue. The injustice done must be rectified.
The issuance of a writ of mandamus would not
have the effect of directing the Regional Transport Authority to do something
contrary to the present law, but of merely asking it to obey the valid order of
the Appellate Tribunal which has not been rendered void on any ground
Whatsoever. [768 E- F] 'Judicial Review of Administrative Action' 3rd Edn.p. 59
by S. A.de Smith, referred to.
(2) An appeal u/s. 64 of the Motor Vehicles
Act, 1939, lies only against the grant of permit, and not against the order
issuing a permit made in pursuance of the order granting the permit. Issuance
of the permit is only a ministerial act necessarily following the grant of
permit. [765 G] Kundur Rudrappa v. The Mysore Revenue Appellate Tribunal and
Ors.  1 S.C.R. 188, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 1214 and 1292 of 1977.
Appeals by Special Leave from the Judgment
and Order dated 31-3-1976 of the Allahabad High Court in Second Appeal Nos.
64 and 63 of 1976 respectively and Civil
Appeal No. 1293 of 1977 Appeal by Special Leave from the Judgment and Order
dated 26-4-76 of the Allahabad High Court in Civil Misc. Writ No. 652/76 and
Civil Appeal No. 1342 of 1977 Appeal by Special Leave from the Judgment and
Order dated 29-4-77 of the Allahabad High Court in Civil Misc. Writ No. 11466/
75 and Civil Appeal Nos. 1487, 1341 and 1412 of 1977 Appeals by Special Leave
from the Judgment and Order dated 6-10-76 of the Allahabad High Court in S.A.
Nos. 160, 182 & 183/ 76.
A. K. Sen (in CA 1214/77) M/s. J. P. Goyal
& Shreepal Singh for the Appellants in CA Nos. 1214, 1292, 1293 &
S. N. Kacker, Sol. Genl., (in CA 1214/77) O.
P. Rana & M. V. Goswami, Advs. for respondents 1-3 & R-7 in CA 1214,
R-3 in CA 1282, R-1 in CA 1342, R-3 in CA 1487, RR 1-3 in 1341 & R-3 in CA
B. Sen, (Oper. R. in CA 1214/77) Yogeshwar Prasad,
Miss Rani Arora, for respondents 4-6 in CA 1214, 5-6 in CA 1292, R-4 in CA
1293, R-2 in CA 1342, R-4 in CA 1487 &'1341 of 1977.
Miss Rani Arora, for R-4 in CA 1412/77.
S. Markandeya, Adv. and Miss Chitra Bhadri,
for the Appellant in CA 1487, 1341 & 1412/77.
M/s. R. K. Garg, S. C. Agarwala & V. J.
Francis, Advs. for Caveator in CA 1293/77.
The, Judgment of the Court was delivered by
UNTWALIA, J.-In this batch of seven appeals by special leave the points
involved are identical. It is a glaring example of unnecessary litigation
between the various stage carriage operators, which could have been avoided if
the State Government of Uttar Pradesh would not have come out with varying laws
and oscillating policies. The facts of all the appeals are similar and common
except in regard to 763 the parties, routes in question, and some other
We proceed to- state the facts from Civil
Appeal No. 1214 of 1977 only. Under section 47(3) of the Motor Vehicles Act,
1939-hereinafter to be referred to as the Central Act the Regional Transport
Authority, Meerut had limited the number of stage carriage permits to be thirty
only for the, route Meerut-Rohta-Sinali-Baraut. In or about the year 1971 an
advertisement was made calling for the applications to fill up eight vacancies,
as twenty-two permits out of the limit of thirty having been already granted
were operative and in force. In October, 1971 the Regional Transport Authority
granted eight permits to the respondents in one appeal or the other. Fifty
applicants who were not granted permits by the Regional Transport Authority
filed appeals before the State Transport Appellate Tribunal (for brevity,
hereinafter, the Appellate Tribunal) under section 64 of the Central Act. While
the said appeals were pending, The U.P.
Motor Vehicles Amendment ordinance No. 9 of
1972 was promulgated on March 16, 1972. It was. replaced by The Motor Vehicles
(Uttar Pradesh Amendment) Act, 1972-U.P. Act No. 25 of 1972-hereinafter called
the U.P. Act of 1972. By the Ordinance followed by the Act aforesaid, section
43A was inserted in the Central Act after ,section 43 authorising the State
Government to "issue such directions of a general character as it may
consider necessary or expedient in the public interest in respect of any matter
relating to road transport" to the various Transport Authorities. The
object of the Act was to do away with the limit on the number of permits to be
granted for stage carriages. Sub-section(2) of section 43-A, in particular,
empowered the State Government in public interest to issue a direction by a
notification in the Gazzette to grant permits to all eligible applicants except
in respect of routes or areas for which schemes had been published under
Section 68C of the Central Act. Some amendments were brought about in section
47 of the Central Act. But for the purposes of these appeals the one to be
pin-pointed is the deletion of sub- section (3) from section 47, the
consequence of which was to delimit the number of permits to be granted for a particular
route. On March 30, 1972, a notification was issued by the State Government
under Section 43-A(2) of the U.P. Act of 1972 directing the Transport
Authorities to grant stage carriage permits to all the eligible applicants.
Some of the stage carriage permit holders on various routes in U.P., including
some of the respondents, challenged the validity of the U.P. Ordinance followed
by the U.P. Act of 1972 and the notification dated March 30, 1972 by filing
writ petitions in the Allahabad High Court. The High Court dismissed their writ
petitions. They came up in appeal to this Court. The appeals were dismissed and
the constitutional validity of the impugned law and the notification was upheld
by a Bench of four learned Judges including one of us (Goswami J.). The
decision of this Court is reported in Hans Raj Kehar & Ors. v. The State of
and Ors. (1) The decision of this Court was
handed down on December 4, 1974. The appeals remained pending before the
Appellate Tribunal because of (1) 2S.C.R. 916=A.T.R. 1975 S.C. 389.
12-951 SCI/77 764 this first round of
litigation. Eventually the appeals were allowed on February 19, 1975 by the
Appellate Tribunal and each one of the fifty applicants was granted one permit
over and above the eight already granted by the Regional Transport Authority.
Pursuant to, the order of grant made by the Appellate Tribunal, permits, were
to be issued by the Regional Transport Authority if the grantee produced a fit
vehicle, meaning there by roadworthy vehicle registered in his name by the 31st
March, 1975 and if by the said date he filed an affidavit sworn by him before
the Regional Transport Authority to the effect that he had not been convicted
of any Criminal offence under the Indian Penal Code during the preceding five
years. The Appellate Tribunal, in its order, had further made it clear that the
time fixed by it for the implementation of the order of grant was under no
circumstances to be extended and if any of the applicants failed to comply with
it, sanction of the permit in favour of the defaulting applicant was to, stand
automatically revoked. The appellants, however, complied with the order and
fulfilled the conditions of the, grant within time. But before permits could be
actually issued, another round of litigation started at the instance of Rama
Kant Ahluwalia and others who had been granted eight permits by the Regional
Transport Authority as per its Resolution pissed on October 29, 1971. 'They
challenged the order of the Appellate Tribunal by filing a writ petition in the
High Court which was summarily dismissed on February 27, 1975.
Three more writ petitions filed by some other
operators challenging the very same order of the Appellate Tribunal were also
dismissed after hearing on September 10, 1975. It may be stated here at this
stage that permits were not actually issued even though the High Court had
vacated the stay orders sometime in June or July, 1975.
After dismissal of the writ petitions by the
High Court, came another notification issued by the State Government on
September 24, 1975 under section 43-A of the U.P. Act of 1972 proposing to
change their policy of granting permits to all eligible applicants. In the
main, we shall be concerned in these appeals with the true meaning and effect
of this notification the relevant portions of which will be quoted hereinafter.
The notification of September 24, 1975 was considered by this RegionalTransport
Authority as putting a bar to the issuance of the permits. The appellants,
therefore, filed Civil Miscellaneous Writ Petition No. 12238 of 1975 in the
High Court challenging the notification as also the U.P. Ordinance 35 of 1975
which had been promul- gated in the meantime on November 12, 1975. They prayed
for an order or a writ of mandamus directing the Regional Trans port Authority
to issue the permits pursuant to the order dated 19.2.1975 of the, Appellate
Tribunal. The writ petition was dismissed by a learned single Judge of the High
Court on February 12, 1976. The appellants went up in appeal under the letters
patent. The, appeals were dis- missed by a Division Bench on March 31, 1976.
Hence these appeals.
U.P. Ordinance 35 of 1975 followed by
Ordinance 9 of 1976 promulgated on February 16, 1976 was replaced by U. P.
Amendment Act 15 of 1976 which came into
force on May 1, 1976. Although the Division Bench of the High Court has not
rested its judgment, and in our opinion rightly, upon the Ordinance and U.P.
Act of 1976, the 765 learned single Judge had done so. We shall briefly refer
to the change of law brought about by the said Ordinance and the Act because
the learned Solicitor General appearing for the State of Uttar Pradesh
endeavoured to make some point out of it. So did the other counsel appearing
for the operator respondents.
The main question, however, which falls for
our determination in these appeals is as to whether the Regional Transport
Authority failed to do its legal duty in refusing to issue the permits pursuant
to the order of the Appellate Tribunal in view of the notification of the State
Government issued on September 24, 1975 under section 43-A of the U.P.
Act of 1972 and whether the High Court was
right in not granting the writ asked for by the appellants.
The, Appellate Tribunal in its order dated
the 19th February, 1975 following the notification of the State Government
issued on March 30, 1972 had ordered the grant of permits to all the
applicants. The relevant words of the order are as follows :- "It would,
therefore, appear to be reasonable that these appellants may also be granted one
permit each on this route, if they can produce a fit vehicle within the given
time and they can satisfy the RTA as to their antecedents, by means of an
affidavit." All the fifty appeals were allowed. The order of the Regional
Transport Authority was set aside and the operative portion of the order was
made in terms as mentioned below :- "Without disturbing the grant of
permit in favour of the respondents, these 50 appellants will also be granted
one regular stage carriage permit each. on this route, provided they produce a
fit vehicle duly registered in their own name by 31st March, 1975, and during
this period they also rile their own personal affidavits before the RTA to this
effect that they have not been convicted of any criminal offence under I.P.C.
during the last 5 years.
This time for Placing the vehicle and for
filing the affidavits, will not be extended on any grounds, and if the
compliance, as above is not made in the given time, the sanction of the permit
in favour of the defaulting appellants will automatically stand revoked."
In Kundur Rudrappa v. The Mysore Revenue Appellate Tribunal & Ors(1). It
was held by a Division Bench of this Court, to which both of us were parties,
that appeal under section 64 of the Central Act lies only against the grant of
permit and not against the order issuing a permit.made in pursuance of the
order granting the permit. "Issuance of the permit is only a ministerial
act necessarily following the grant of the permit" was the distinction
pointed out at page 190.
Then came the change of policy notification
involving the parties in further litigation. The Preamble of this notification
dated September 24, 1975 states that the State Government is of opinion that
the policy of granting such permits to all eligible applicants requires (1)
 1 S.C.R. 188.
766 review and since such review was likely
to take sometime in the meantime it was necessary to stay "the disposal of
all pending applications for permits or entertainment of fresh
applications." The notification dated the 30th March, 1972 was rescinded
with immediate effect by clause (1) and thereafter clause (2) provided :
"The consideration of applications for
stage carriage permits pending with any Transport Authority shall stand
postponed until further directions are issued in this behalf by the State
Government." The High Court thought that since permits has not been
issued, they could not be issued because, of the notification dated September
24, 1975. Although not in form, in substance, the High Court thought that the
effect of the order of the Appellate Tribunal was to remand the cases to the
Regional Transport Authority for granting permits to the appellants on being
satisfied that the vehicles put by them were roadworthy and that their
antecedents were not undesirable. In our judgment the High Court has fallen
into an error in this regard. AR the parties were agreed before us that clause
(2) of the notification had not the effect of recalling, revoking or cancelling
the permits which had been granted and issued pursuant to the notification
dated 30.3.1972. It was, also, beyond any debate or doubt that if the
applications for the grant of stage carriage permits were pending with any
Transport Authority when the notification was issued it stood postponed until
further directions were issued in this behalf by the State Government. But the
scope for litigation and argument in these cases cropped up because they did
not clearly and precisely fall in one line or the other. If on the special
facts of these cases consideration of the applications could be taken to be
pending with any Transport Authority, then they bad to remain pending until
further directions were issued. But if, on the other hand, on a correct
appreciation of the legal position the applications had been finally disposed
of by the order of the Appellate Tribunal and they were not pending for any
consideration then they did not stand postponed and permits had to be issued
pursuant to the order of the Appellate Tribunal. The Regional Transport Authority
had no discretion or power in the matter to dispose of the applications one way
or the other.
To our mind the problem does not present much
The applications filed by the appellants for
grant of permits to them were rejected by the Regional Transport Authority in
October, 1971. They were finally disposed of and permits were granted to them
by the order of the Appellate Tribunal made on 19-2-1975. The consideration of
the applications for grant of permits was no longer pending after the said
order. What remained pending was a mere ministerial act to be performed by the
Regional Transport Authority or by any delegate of that authority in accordance
with Rule 44A of the U.P. Motor Vehicles Rules, 1940.
According to the terms of the order of the
Appellate Tribunal, nothing substantial or unsubstantial was to be decided by
the Regional Transport Authority in connection with the grant of permits. The
Regional Transport 767 Authority could not say that it refused to grant the
permit on one ground or the other. What was left to be done by it was only to
find out whether a particular applicant had complied with the terms of the
order and within the time granted by the Appellate Tribunal. If the terms were
not complied with by the specified time the grant stood revoked not because the
Regional Transport Authority could revoke it but because the Appellate Tribunal
had specified it to be so. As already stated, all the applicants had complied
with the terms of the Appellate order within time, actual issuance of the
permits could not be done because of the stay orders made by the High Court in
the earlier writ petitions. In sum and substance, therefore, the appellants
became entitled to the issuance of the permits in their favour by 31st March,
1975. It is difficult to understand as to in what sense their applications
remained pending after 31st March, 1975 and how did they remain pending even in
the remotest sense of the term after the vacation of the stay order by the High
Court and the dismissal of the writ petitions on the 10th of September, 1975.
When the notification dated September 24, 1975 was issued the position was
absolutely clear that nothing in any sense was pending except that in the
physical sense a paper containing the permit was not actually issued. Clause
(2) of the said notification was not meant to cover nor did it cover a case of
this kind. The Regional Transport Authority failed in its legal duty in not
implementing the order of the Appellate Tribunal and issuing the permits as a
result thereof. It was, therefore, just. and proper to grant the writ of
mandamus as asked for by the appellants.
We may now briefly deal with the additional
points urged by the Solicitor General and M/s B. Sen and Yogeshwar Prasad.
For the purpose of appreciating some of those
points it would suffice to refer to the provisions of U.P. Act 15 of 1976 which
were almost in identical terms to the two Ordinances which had preceded it.
Section 21 of this Act amended section 43-A with retrospective effect. The
effect of this was to bring into force section 47(3) of the Central Act and
with retrospective effect. Sub-section (3) of section 21, however, provided :
"Any direction under sub- section (1) may be issued with retrospective
effect." Then sub-section (5) is in the following terms "Where any
direction is issued under sub- section (1) with retrospective effect then- (a)
any Transport Authority or the State Transport Appellate Tribunal may review
any order passed earlier by it with a view to making it conform to such directions,
and may for that purpose cancel any permit already issued ;
(b) Any Transport Authority may apply to the
High Court for review of any order passed by such Court earlier with a view to
enabling such Authority to comply with such direction." The argument on
behalf of the State was that the order of the Appellate Tribunal became illegal
as being against the law which 768 was by a legal fiction, made to come into
force by its retroactive action when the said order was passed. Reliance was
placed upon the decision of this Court in The Commissioner of Income Tax, Bihar
& Orissa v. Maharaja Pratap Singh Bahadur of Gidhaur(1). In our opinion the
argument is, devoid of any substance. There was nothing in the Ordinance or the
U.P. Act of 1976 to make the order of the Tribunal illegal. The order when made
was legal and with jurisdiction. The retrospective change in law had not the
effect of nullifying the order. It is to be further emphasised that if the
order was complete and final, in the sense we have explained above, then two
formalities had to be gone into in order to get rid of that order. Firstly, a
special direction had to be issued under 'sub-section (1).
No such direction issued was brought to our
Secondly, the procedure of review had to be
followed as provided for in sub-section (5) of section 21 of the Amending Act
of 1976. In Maharaja Pratap Singh's case (supra) the amendment of the law with
retrospective effect had made the proceeding void ab initio. The law was retro-
spectively amended during the pendency of the appeals before the Appellate
Assistant Commissioner. Any order made in such a proceeding was, therefore,
held to be void. The ratio of that case is wholly, inapplicable for nullifying
the order of the Appellate Tribunal.
It was then submitted by learned counsel for
the parties that because of the change in law in 1976, this Court should not
for the sake of justice allow these appeals filed on grant of special leave
under Article 136 of the Constitution and issue a writ of mandamus which will
have the effect of directing the Regional Transport Authority to do something
contrary to the present law. In our opinion, there is no substance in this
point either. The High Court refused to issue the writ on a misapprehension of
the correct position in law and by misreading the order of the Appellate
Tribunal and the notification dated September 24, 1975.
Retrospective change in law brought about in
1976 cannot justify allowing the wrong to continue. The injustice done to the
appellants must be rectified. The result of the writ will not be tantamount to
asking the Regional Transport Authority to do something which will run contrary
to section 47(3) or the proviso to section 57(3) of the Central Act.
It would be merely asking the Regional Transport
Authority to obey the valid order of the Appellate Tribunal which has not been
rendered void on any ground whatsoever.
Mr. A. K. Sen, learned counsel for the
appellants drew our attention to what S.A. de Smith has pointed out at page 59
of the third edition of his well-known treaty "Judicial Review of
Administrative Action" :- "It may describe any duty, the discharge of
which involves no element of discretion or independent judgment. Since an order
of mandamus will issue to compel the performance of a ministerial act, and
since, moreover, wrongful refusal to carry out a ministerial duty may give rise
to (1)  2 S.C.R. 760.
769 liability in tort, it is often of
practical importance to determine whether discretion is present in the
performance of a statutory function. The cases on mandamus show, however, that
the presence of a minor discretionary element is not enough to deter the courts
from characterising a function as ministerial." We think that the Regional
Transport Authority, pursuant to the order of the Appellate Tribunal, had
merely to perform a ministerial duty and the minor discretionary element given
to it for finding out whether the terms of the Appellate Order had been
complied with or not is not enough to deter the Courts from characterising the
function as ministerial.
On the facts and in the circumstances of this
case by a writ of mandamus the said authority must be directed to perform its
For the reasons stated above,, we allow these
appeals and direct the Regional Transport Authority or Authorities, as the case
may be, to implement the orders of the Appellate Tribunal, issue the permits to
the appellants in all the cases. We would, however, Eke to make it clear that
permits were to be issued for a period of three years only.
Temporary permits were issued to the
appellants or some of them from time to time in pursuance of the interim order
made either by the High Court or by this Court. The total period of such
temporary permits in the case of any of the appellants must be deducted and
adjusted as in the present situation of the law it would be just to do so, from
the period of three years. In the circumstances, we make no order as to costs
in any of the appeals.
M.R. Appeals allowed.