Skip to content


A. Narayana Kamath Vs. State Transport Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 595 of 1958
Judge
Reported inAIR1960Kant33; AIR1960Mys33
ActsMotor Vehicles Act - Sections 45, 46, 46(1), 46(2), 48, 57(2) and 57(3); Madras Motor Vehicles Rules - Rule 156
AppellantA. Narayana Kamath
RespondentState Transport Authority and ors.
Excerpt:
- land acquisition act, 1894.[c.a. no. 1/1894]. sections 23 & 54(1): [ram mohan reddy,j] acquisition of land for public purpose determination of market value - reference adoption of capitalization method enhancement of market value of sugarcane and chillies per acre appealed against on facts held, the yield notification of the year 1970-71 states that in class v (five) category of the land, the maximum yield of sugarcane per acre is 45 tonnes and minimum is 35 tonnes whereas, in class i (one) category lands the maximum is 96 tonnes and minimum is 75 tonnes. further, the division bench of this court in special land acquisition officer v aiyappa yamunappa reported in ilr 1986 (1) kar 340 recognised the fact that the income which an agriculturist was securing was rather fantastic when.....somnath iyer, j.(1) this application is directed against an order made by the mysore state transport authority on 29-11-1958 canceling a permit granted to the petitioner by the regional transport authority, mangalore, under the provisions of the motor vehicles act.(2) the impugned order was made in the following circumstances :(3) by a notification issued under section 57(2) of the motor vehicles act, which will hereafter be referred to as the act, the regional transport authority, mangalore, invited applications for the grant of a state carriage permit for one bus to city type with central gangway, seating capacity of not less than 30 seated passengers and of a later (not older than 1952) model' to ply on the following route in mangalore :'hampankatta to leewell via maidan north road,.....
Judgment:

Somnath Iyer, J.

(1) This application is directed against an order made by the Mysore State Transport Authority on 29-11-1958 canceling a permit granted to the petitioner by the Regional Transport Authority, Mangalore, under the provisions of the Motor Vehicles Act.

(2) The impugned order was made in the following circumstances :

(3) By a notification issued under Section 57(2) of the Motor Vehicles Act, which will hereafter be referred to as the Act, the Regional Transport Authority, Mangalore, invited applications for the grant of a State Carriage permit for one bus to City type with Central Gangway, seating capacity of not less than 30 seated passengers and of a later (not older than 1952) Model' to ply on the following route in Mangalore :

'Hampankatta to Leewell Via Maidan North Road, Resarie Church Road, and Hoige Bazar (Town route).'

There were fourteen applicants for that permit of whom the petitioner was one.

(4) The Regional Transport Authority decided to grant the permit to the petitioner by its Resolution dated 23-7-1957. From that order granting the permit to the petitioner, six of the unsuccessful applicants appealed to the State Transport Authority. The State Transport Authority, by an order made by it an 29-5-1958, set aside the order of the Regional Transport Authority and remanded the proceedings to the Regional Transport Authority for fresh disposal.

(5) The petitioner thereupon presented Writ Petition No. 173 of 1958 to this Court for getting that order of remand quashed. This Court set aside the order of remand and directed the State Transport Authority to dispose of the appeals afresh, according to law.

(6) When the matter went back to the State Transport Authority, the appellants in those appeals, who are respondents 2 to 7 in this Writ Petition raised for the first time, three new contentions. Those contentions were upheld by the State Transport Authority as a consequence of which it made an order cancelling the permit granted to the petitioner. It further held that the applications by respondents 2 to 7 to the Regional Transport Authority were also defective. Although this State Transport Authority did not say so in so many words, the effect of the order made by it was that the entire proceedings before the Regional Transport Authority stood quashed.

(7) The first of these new contentions urged before the State Transport Authority was that since the petitioner was not, on the date of his application, in possession of the vehicle which he proposed to use under the permit, he was not entitled to make an application for a permit.

(8) The second contention was that the application presented by the petitioner to the Regional Transport Authority was defective since the petitioner had omitted to property fill up Columns 5, 6, and 8 of the application presented by him. Against Column 5 of that form, the petitioner had to mention the registration mark, type, seating capacity and the maximum laden weight, of the vehicle which he proposed to use. Column 6 related to the particulars of his time-table. In regard to Column 8, the petitioner was required to state whether he was in possession of the vehicle proposed to be used by him.

(9) The third contention urged was this: When the Regional Transport Authority published the applications for the grant of the permit, it did not publish the date on which and the time and place at which the applications and the representations submitted in connection therewith would be considered. So, it was argued, that the order made by the Regional Transport Authority granting the Permit to the petitioner without conforming to the requirements of Section 57(3) of the Act, was made without jurisdiction and therefore liable to be quashed.

(10) In regard to the first two contentions which I shall first consider, this is what the State Transport Authority said:

'The respondent has not furnished in his application the registration mark, seating capacity maximum laden weight and the type of the vehicle against Column No. 5 of the application. He has also not furnished the time-table in or along with his application. As against Column No. 5 of his application he has stated 'Will be produced after the grant of the permit'. This statement shows that the respondent was not in possession of a stage carriage on the date of the application.'

In another part of its order, the State Transport Authority observed that although the provisions of the Motor Vehicles Act required the applicant for the grant of a permit to possess, on the date on which he applies for the grant of such permit, the vehicle proposed to be used under the permit, he did not possess one.

(11) Mr. Karanth appearing for the petitioner urged that the State Transport Authority in permitting respondents 2 to 7, to raise these new contentions did something contrary to the order of remand made by this Court in A. P. 173 of 1958. But he was unable to point out anything in that order by which Respondents 2 to 7 were precluded from raising any new contention if it was otherwise open to them to do so.

(12) However that may be, the impugned order of the State Transport Authority appears to me to proceed on an entirely incorrect exposition of the law. Firstly, the Act, it is not disputed, contains no provision that in order to be eligible to apply for a permit the applicant should possess a vehicle which he could use under it. Section 45 of the Act under which an application for a permit could be made contains no such provision. Nor is there anything to that effect in S.46 and sub-ss. (1) and (3) of S. 48 of the Act on which reliance was placed for the respondents. Section46 merely specifies the particulars to be contained in an application for a permit.

Neither the words 'to use a particular motor vehicle as a stage carriage' occurring in the opening part of S.46, nor Clause (b) of that Section which requires the type and seating capacity of the vehicle to be mentioned in the application for a permit can, by implication, justify the view that the possession of a vehicle is a contention precedent to the presentation of an application for a permit. All that the section provides is that an application may be made for a permit to use a particular vehicle and not that the applicant should, at that time, possess one. Likewise, it is clear that the reference in Clause (b) is only to the type and seating capacity of the vehicle proposed to be used and not on the vehicle required to be possessed when an application is made.

(13) It is equally clear that there is nothing in sub-ss.(1) and (3) of S. 48 which supports the contentions of the respondents. All that has been provided by the above sub-sections is that a stage carriage permit may be granted in accordance with the application or with such modifications as may be deemed fit, and that a permit may be granted for a stage carriage of a specified description. That is not the same thing as saying that, in order that a permit may be granted in that way, an applicant should have been in possession of a stage carriage even when he applied for a permit. On the contrary, there is something in sub-s.(3) (ix) which negatives that contention of the respondents.

The provision of that clause is that the Regional Transport Authority may attach to the permit granted by it a condition that vehicles of specified types fitted with bodies conforming to approved specifications shall be used. It is plain that if it is possible for the Regional Transport Authority to direct by the permit that the person to whom the permit is granted shall use a vehicle of a specified type fitted with bodies conforming to approved specifications, it would be unreasonable to suggest that the applicant, when he applies for a permit, should be in possession of some vehicle whether it is or is not of the type to be specified in the permit to be granted to him and whether it has or has not a body conforming to the specifications to be mentioned in it.

(14) It is next pointed out that the form of the application for a permit prescribed by R. 156 of the Madras Motor Vehicles Rules by which these proceedings were governed, requires the applicant to state in his application the registration mark, type, seating capacity and maximum laden weight of the vehicle. The necessary implication of that requirement is, it is argued, that he should be in possession of the vehicle on the date of his application.

(15) It is true that the form in which the application for a permit has to be made does contain columns relating to the particulars referred to above. That is the form prescribed by R. 156 of the Madras Motor Vehicles Rules which is one of the rules made under S. 68(2) (c) of the Act which empowers the State Government to make rules prescribing the forms to be used for the purpose of Chapter IV of the Act under which the Regional Transport Authority grants a stage carriage permit, Columns 5 and 8 of that form read as follows:

'5. The Vehicles (s) to be used on the Service is/are :

Registration Mark Type Seating Maximum Laden Weight(1) (2) (3) (4)* * * * * * * 8. I am/We are at present in possession of Vehicle (S)--available for use under the permit applied for.'

Against Column 5, the petitioner wrote the following words:

'Will be produced after grant of permit.'

Against Column 8, he wrote the words:

'Vehicles will be produced after granting the permit.'

This form also contains a note at its bottom which is as follows:--'Strike out inapplicable entries or alternatives throughout.'

(16) From this note, it is clear that if any of the columns in that printed form is inapplicable to a particular application all that the applicant has to do is to strike out that column. That being the position, and since the Act itself does not require an applicant to be in possession of a vehicle when he applies for a permit, if an applicant is not in possession of a vehicle on that date columns 5 and 8 which would be inapplicable to his case have to be merely struck off.

(17) The petitioner, instead of striking out those two columns, stated that he would be producing the vehicle after the grant of the permit. This, he was clearly entitled to do. In my opinion, it would be impossible for the respondents to sustain the contention that the mere existence of Columns 5 and 8 in the prescribed application form makes it necessary for an applicant to be in possession of the vehicle on the date of his application for a permit. Rule 156 prescribes only a form. It does not and cannot prescribe a qualification.

(18) There is, however, another answer to the contention urged by the respondents, which is contained in R. 163 of the Madras Motor Vehicles Rules. That Rules is:

'163. (a) No permit shall be issued until the registration mark of the vehicle to which it relates has been entered therein.

(b) When the applicant is unable to produce the certificate of registration on the date of his application for the permit, for the reason that he is not on that date in possession of a vehicle duly registered, or for some other reason the Transport Authority, the Appellate Authority or the State Government acting under S.64-A of the Act, as the case may be, shall grant him four months' time to be reckoned from the date of receipt of the orders passed by them on the application, to produce the certificate of registration of the vehicle before the Transport Authority which has to issue the permit in order that particulars of registration mark may be entered in the permit.

In cases where the Central Road Traffic Board's order is stayed by the Government and is subsequently vacated, the time for production of the registration certificate should be calculated from the date of receipt of the order of Government confirming the Central Road Traffic Board's order. If, however, the applicant acquired the vehicle and is liable to produce the certificate of registration thereof within the four months' time allowed under this rule, the Transport Authority concerned shall issue the permit in respect of that vehicle.

The acquisition of a vehicle in pursuance of an order sanctioning the permit shall be at the sole risk of the applicant as the order sanctioning the permit may be reversed on appeal or revision under the Motor Vehicles Act and Rules and such acquisition shall not be deemed to be a point in favour of the applicant while disposing of the appeal or revision. If any applicant fails to produce the certificate, together with current fitness certificate, within the four months' time, the Transport Authority, the Appellate Authority or the State Government, as the case may be, shall revoke its sanction.'

As provided by sub-r. (b) of the above Rule when an applicant is not in possession of a duly registered vehicle on the date of his application and is therefore unable to produce his certificate of registration, the Transport Authority, the Appellate Authority or the State Government as the case may be, has to grant him four months' time from the date of receipt of the order on his application to produce such certificate of registration. The meaning of that Rule, therefore, is that an applicant is not bound to be in possession of a duly registered vehicle on the date of his application but that he is entitled to be granted four months' time from the date of receipt of the order made on his application, for the production of the certification of registration. It would be open to him, during those four months, to acquire possession of a vehicle duly registered and produce the certificate of registration thereof.

(19) But, it is urged on behalf of the respondents that in making the aforesaid rule, the State Government exceeded the power conferred on it by S.68 of the Act. It is argued that once the State Government prescribed the form under R. 156 requiring the applicant to furnish the particulars referred to in Columns 5 and 8 of that application, it could not properly make a contrary rule like R. 163 entitling the applicant to acquire a vehicle or possession thereof after an order was made on his application.

(20) In my opinion, there is no merit in this contention. It cannot be suggested that there is any conflict between R. 163 and 156 which prescribes the form of the application. Columns 5 and 8 contained in the form of the application prescribed under R. 156 have to be filled in by the applicant only when he is in possession of the vehicle proposed to be used by him and therefore he is in a position to state those particulars, in a case like that, he could state those particulars in the application.

But, when he is not in possession of the vehicle on the date of his application, what he has to do is to strike out Columns 5 and 8 in that form and present his application, and if, on that application a permit is granted to him, the concerned Transport Authority is, under R. 163, bound to give him the time specified in that rule for the production of the certificate of Registration. Further, it was quite within the competence of the State to enact R. 163 under the provisions of S. 68(I) of the Act which empowered it to make rules for the purposes of carrying into effect the provisions of Chapter IV of the Act.

(21) In my opinion, the view taken by the State Transport Authority that the permit granted to the petitioner was liable to be cancelled as he did not possess a vehicle when he made an application for a permit derives no support from the provisions of the Act or Rules made thereunder and cannot therefore, be sustained.

(22) The next ground on which the State Transport Authority cancelled the permit granted to the petitioner was that the petitioner's application for the permit was defective as it did not contain the particulars referred to in columns 5, 6 and 8 of the form prescribed by the Madras Motor Vehicles Rules. Columns 5 and 8 have already been referred to by me in another context. Against Column 5, the applicant has to give the registration mark, type, seating capacity and the maximum laden weight of the vehicle proposed to be used by him. Against Column 8 he is required to state that be is, on the date of his application, in possession of that vehicle, Column 6, to which I have not referred till now is:

'6. Particulars of the time-table are/not appended.'

Underneath this column, there is a note contained in the form which reads:

'Note: No time-table need be appended in any case in which timings have already been fixed by competent authority.'

The view taken by the State Transport Authority was that unless the application contained particulars required to be given against these three columns, it could not be regarded as an application property made under the Act.

(23) It is seen from S.46 of the Act that columns 5 and 8 of the form refer to many particulars which are not required by that Section to be stated in the application. But while S.46 (b) does provide that the type and seating capacity referred to in Column 5 should be mentioned in the application, S.46 (b) provides that particulars of the time-table of the proposed services referred to in Column 6 should be mentioned in it.

(24) It is true that if by a rule properly made by the State, it was provided that further particulars in addition to those referred to in clauses (a) to (e) of S.46 should be furnished in the application, these particulars should have to be so furnished as directed by S. 46(f) But no such rule made by the State was pointed out to us. What the State did under R.156 was to merely prescribe the form in which an application should be made, although that form contained columns which referred to many matter not specified in S.46.

That rule, which was made under S. 68(2)(c) of the Act prescribed only a form. It did not prescribe any particulars. That being the position, those additional matters for which columns were provided in the form prescribed by it cannot merely for that reason, claim the status of particulars prescribed by rules under the Act, and cannot, therefore, be regarded as particulars referred to in S.46(f) of the Act.

(25) In regard to the type and seating capacity of the vehicle which the petitioner did not mention in his application and the time table which he failed to furnish. Mr. Karanth contends that even that requirement is not a mandatory requirement and that the omission to furnish those particulars in the application presented by the petitioner did not render his application defective. In any event, he urged that that omission on the part of the petitioner should have been regarded by the state Transport Authority as a mere error, omission or irregularity in the proceedings, which, under the provisions of S. 134(2) of the Act did not entail a reversal of the order made by the Regional Transport Authority unless it had in fact occasioned a failure of justice.

Mr. Karanth submitted that the State Transport Authority, not having recorded a finding that the omission on the part of the petitioner to give the particulars referred to by it, had in fact occasioned a failure of justice, its order, reversing that of the Regional Transport Authority, having been made in contravention of the provisions of S. 134(2) was unsupportable.

(26) While considering the correctness of the view taken by the State Transport Authority that the petitioner was bound to have a vehicle in his possession, when he made his application for the permit, I have expressed the view that it was not necessary for the petitioner to state the particulars referred to in Columns 5 and 8 of the form if he was not in possession of a vehicle on that date. Those columns, as pointed out by me, were inapplicable to his case and it was clearly open to him to strike out those entries in accordance with the note at the bottom of that form. Further as pointed out by Mr. Karanth, the notification published by the Regional Transport Authority under S. 57(2) of the Act, itself contained the particulars of the type and seating capacity of the vehicle which had to be used. It therefore became quite superfluous for the petitioner to state those particulars.

(27) What remains to be considered is that effect of the omission by the petitioner to purpose a time table. In the opinion of the State Transport Authority, it rendered his application defective. It is contended on behalf of the respondents that that view is fully supported by the provisions of S. 46(c) of the Act. That clause, among other matters, provides that an application for a permit shall, as far as may be, contain particulars of the proposed time-table. It is admitted that the petitioner did not, in his application, furnish those particulars. It is therefore argued that there was a violation of a mandatory provision of the Act which made it impossible for the Regional Transport Authority to entertain it.

This argument is, however, met by Mr. Karanth by pointing out that S.46 which specifies the particulars to be contained in an application for a permit itself provides that those particulars should be furnished, 'as far as may be', and he argued that those words occurring in that section which did not exist in that section as it stood before the Act was amended by Act No. 100 of 1956, indicate that the omission to furnish the particulars referred to in S. 46, if it was not possible to furnish them at the time of the application, did not amount to non-compliance with any mandatory provisions of the Act.

(28) It has to be observed that this is not a case in which the proceedings commenced with an application made by the petitioner for the grant of a permit. On the contrary, his application was one made pursuant to a notification by the Regional Transport Authority under S. 57(2) of the Act. Inviting applications for the grant of a permit. It is undisputed that the Regional Transport Authority did so for the purpose of relieving congestion along a route on which another stage carriage service was already in existence.

In that situation and having regard to the words 'as far as may be' occurring in S.46, it seems to me that it was open to the petitioner to forbear from proposing any time table of his own and to leave it to the Regional Transport Authority to fix the time table which it was entitled to do under the provisions of Clauses (iii) and (iv) of S. 48 (3) of the Act. The failure on his part to purpose a time-table, it seems to me was not therefore, a ground on which the Regional Transport Authority could have refused to receive his application.

(29) The Station Transport Authority based its order on another ground. In its view, the failure on the part of the Regional Transport Authority to specify in the notification made by it under S. 57(3) of the Act, the date on which and the time and place at which the applications and the representations received would be considered, rendered its proceedings void. That notification which was published on 14-5-1957, referring to the applications received by it proceeded to state as follows :

'Those who have any representations to make in this connection should do so in writing so as to reach the Secretary, Regional Transport Authority, Mangalore, on or before 10-6-1957 furnishing copies thereof simultaneously to the applicant. Representations received after the above date or the copies of which have not been furnished to the applicants simultaneously will not be considered.

The above application and the representations received in connection therewith will be considered on or after 25-6-1957 by the R. T. A. Mangalore region. The exact place and date will be intimated later on.'

The criticism of this notification by the State Transport Authority is that in the second paragraph of the above extract, the Regional Transport Authority should have as requited by S. 57(3) of the Act, publishing the date on which and the time and place at which the applications and the representations would be considered. It is not disputed that after the above notification was published, the Regional transport Authority did notify the date on which and the time and place at which the applications and the representations would be considered by it. It is admitted by respondents 2 to 7 that the applicants were also individually notified about it.

(30) The contention of the respondents, however, is that the publication of the aforesaid date, time and place should be made along with the publication of the application or the substance thereof and the date within which representations should be sent and that if no publication was made in that way, it would amount to a violation of the mandatory provisions of that section, rendering the entire proceedings void even if the applicants had been subsequently notified of the date, time and place of hearing.

(31) Now, the material portion of S. 57(3) of the Act reads as follows :

'57. Procedure in applying for and granting permit :

* * * * * (3) On receipt of an application for a stage carriage permit or a public carrier's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication on which, and the time and place at which the applications and any representations, received will be considered.* * * * *

(32) This sub-section clearly directs the simultaneous publication of the application or its substance, the date for the submission of representations and the date, time and place of bearing. But, the Regional Transport Authority, instead of making such simultaneous publication, stated that the applications and representations would be considered on or after 25-6-1957, and that the exact date, time and place of hearing would be intimated thereafter. The Regional Transport Authority subsequently fixed the date, time and place of hearing and intimated the parties about it by individual notices. In upholding the contention that this disregard by the Regional Transport Authority of the procedure prescribed by S. 57(3) invalidated its entire proceedings, the State Transport Authority observed :

'The State Transport Authority is of the opinion that the contentions of the appellants are well founded. It is seen from the notification published under S. 57(3) of the Motor Vehicles Act in this case by the Regional Transport Authority, South Kanara, Mangalore, that the date on which and the time and place at which the applications and the representations would be taken up for consideration were not mentioned in it and the Notification is therefore clearly opposed to the mandatory provisions of S. 57(3) of the Motor Vehicles Act.

When the case was remanded by this authority in appeal before this authority in special Subject No. 5 of March 1958 dated 29-5-1958, the question of the validity of the notification was neither raised nor considered and the whole case was remanded for disposal according to law. As this is a question of law which goes to the root of the matter the parties are not precluded from raising the question now.'

(33) The State Transport Authority assumed that the Regional Transport Authority disobeyed an imperative provision in the Act since it did not publish the date, time and place of hearing exactly as required by S. 57(3) of the Act. But, it is clear that a statute which is enacted for the purpose of enabling something to be done and which prescribes the way in which it is to be done may be either an absolute or imperative enactment or merely a directory enactment and it is well settled that if it is the former, it must be obeyed or fulfilled exactly, nullification being the implied consequence of disobedience whereas, if it is a directory enactment, it is sufficient if it is obeyed or fulfilled substantially.

(34) The question is whether the State Transport Authority was right in the assumption which it made that S. 57(3) was an imperative provision and that its violation invalidated the entire proceedings. It has been said that no universal rule can be laid down as to whether the provisions in a statute are directory or imperative and that in each case, the Court should decide whether the provision is what is called imperative or directory upon a review of its subject matter, its importance and its relation to the general object secured by the Act. In Haward v. Bodington, (1877) 2 PD 203, Lord Penzance, while discussing the imperative or mandatory character of a provision in a statute, observed :

'There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would taken an opposite view, and would feel that they are matters which must be strictly obeyed otherwise the whole proceedings that subsequently follow must come to an end.'

(35) There can be no doubt that if a provision contained in a statute makes the performance of something a condition precedent to the exercise of jurisdiction such provision would be an imperative provision, the violation of which, striking as it does at the very root of jurisdiction, would render the proceedings taken in disregard or disobedience illegal. There may be similar vital provisions in a statute which go to the root of the matter and those provisions, it cannot be doubted, are also imperative provisions. Those are provisions which are of such material importance to the subject matter to which they refer that their non-observance would be followed by total failure of the whole proceedings. Other provisions which do not fall in that class are only directory and it would be sufficient if they are obeyed provided no prejudice ensues.

(36) The position therefore is that if the provision in S. 57(3) which was contravened by the Regional Transport Authority can be said to be an imperative provision, its infringement would be illegal whereas if it can be regarded as merely directory, its infringement would be a mere curable irregularity unless such irregularity has occasioned failure of justice.

(37) In Slaney v. State of Madhya Pradesh, : 1956CriLJ291 , while considering the effect of the contravention of the provisions of a statute on the proceedings taken in disregard thereof, Chandrasekhara Aiyar, J. Observed :

'Of course, lack of competency of jurisdiction, absence of a complaint by the proper person or authority specified, want of sanction prescribed as a condition precedent for a prosecution, in short, defects that strike at the very toot of jurisdiction stand on a separate footing, and the proceedings taken in disregard or disobedience would be illegal.

The difficulty arises only when we have to consider the other provisions in the Code which regulate procedure and which are found in a mandatory form, positive or negative. It is in this class of cases that the distinction becomes important and material.'

(38) In another part of his judgment the learned Judge proceeded to observe :

'After all, in our considering whether the defect is illegal or merely irregular, we shall have to take into account several factors, such as the form and the language of the mandatory provisions, the scheme and the object to be achieved, the nature of the violation, etc.'

The learned Judge after setting out the observations of Lord Penzance in (1877) 2 PD 203 to which I have referred said :

'The gravity of the defect will have to be considered to determine if it falls within one class or the other. It is a mere unimportant mistake in procedure or is it substantial and vital? The answer will depend largely on the facts and circumstances of each case.

If it is so grave that prejudice will necessarily be implied or imported it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established.'

(39) The same principle was enunciated by the Supreme Court in Thakur Pratap Singh v. Shri Krishna Gupta, : [1955]2SCR1029 . That was a case in which the appellant who was a candidate for the Office of President of a Municipality had filled in his nomination from without specifying in it, as required, his occupation. He secured the highest number of votes and was declared elected. In an election petition by which that election was contested, it was urged that the omission by the appellant to set out his occupation in his nomination paper amounted to a contravention of an imperative provision of law rendering his election void. That contention was overruled by the trial Court but was upheld by the High Court in revision. In an appeal from that order of the High Court. Bose, J. While referring to the view taken by the High Court observed :

'We do not think that is right and we deprecate this tendency towards technicality, it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; other are only directory and a breach of them can be overlooked provide d there is substantial compliance with the rules and read as a whole and provided no prejudice ensues and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad base d, commonsense lines. This principle was enunciated by Viscount Maugham in Punjab Co-operative Bank, Ltd., Amritsar v. Income-tax Officer, Lahore , and was quoted by the learned High Court Judges : 'It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.'

(40) These are the principles which should be applied for deciding whether, in this case, the contravention by the Regional Transport Authority of the provisions of S. 57(3) amounted to an illegality invalidating its entire proceedings or whether it amounted to a mere irregularity which would not be followed by a total failure of the whole proceedings in the absence of prejudice by way of failure of justice.

So tested, it seems to me, that the provisions of S. 57(3) requiring the publication of the date, time and place of hearing in the same notification, which were disregarded by the Regional Transport Authority cannot be said to be of that material importance to the subject matter to which they refer as that the legislature could have intended that their non-observance should invariably be followed by a total failure of proceedings. It cannot also be said that the gravity of the contravention by the Regional Transport Authority was such that prejudice will necessarily be implied and imported. The mistake committed by the Regional Transport Authority has in my opinion, to be regarded as a mere unimportant mistake and not one that can be said to be either substantial or vital.

(41) Section 57(3) of the Act which directs that the applications or their substance, the date for submissions of representations and the date, time and place of hearing shall be simultaneously published is a statutory provision enacted with the object of giving to those concerned all the above information on one to those concerned all the above information on one and the same occasion and as is generally does in one and the same document, so that no inconvenience or confusion should be caused by a plurality of notifications.

In the publication made by the Regional Transport Authority which was otherwise in accordance with the provisions of the above sub-section, it was stated that the applications and representations would be considered on or after 25-6-1957, but that the exact place and date would be intimated later. It was admitted before us that such intimation was later given individually to all the applicants and all those who had submitted representations. It would be difficult to hold that what the Regional Transport Authority did, did not amount to substantial compliance with the provisions of the Act.

(42) The deviation by the Regional Transport Authority in this case from the procedure prescribed by the Act cannot, in my opinion, be regarded to be so grave or so serious as to entail, in the absence of prejudice, the annulment of its entire proceedings.

(43) It is undisputed that none of the respondents contended before the Regional Transport Authority that there was any violation of the provisions of S. 57(3) of the Act. That objection was not even raised in the memoranda of appeal presented by Respondents 2 to 7. It was not urged even before this Court when it heard and disposed of Writ Petition No. 173 of 1958. It is further admitted that that date of hearing was not less than thirty days from the date of the publication of the applications and the notice fixing the date within which the representations had to be submitted.

Although, it is clear that the transgression of the provisions of S. 57(3) of the Act by the Regional Transport Authority amounted in this case to no more than a mere irregularity, the State Transport Authority would have been right in quashing its proceedings, had it, as required by S. 134(2) of the Act, recorded a finding that that irregularity had in fact occasioned a failure of justice. This, the State Transport Authority, did not do and could not in this case have property done.

(44) That sub-section which incorporates a sound principle calculated to promote justice reads :

134. Effect of appeal and revision on orders passed by original authority--

* * * * * (2) No order made by a competent authority under this Act shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings, unless it appears to the prescribed appellate authority or revisional authority, as the case may be, that such error, omission or irregularity has, in fact, occasioned a failure of justice.'

(45) The Order of the State Transport Authority made in contravention of its provisions was clearly outside its competence.

(46) Although in our opinion the violation of the provisions of S. 57(3) of the Act was, in this case a mere curable irregularity, we should, I think, impress upon the Regional Transport Authorities in the State the necessity for meticulous adherence and exact obedience to the provisions of the Act, and the impropriety of the adoption of a procedure different from that prescribed by the Act.

(47) It has come to our notice that Regional Transport Authorities in the State have been of late so often so systematically disregarding the provisions of S. 57(3) of the Act that the disobedience cannot be regarded as inadvertent or accidental. Such transgression cannot too strongly be condemned or deprecated. It is clear that such disobedience is a manifestation of the perfunctory manner in which the Regional Transport Authorities have been performing their statutory duties which might in a proper case, lead to the annulment of its proceedings involving inexcusable waste of public time and money.

(48) Mr. Ullal, appearing for one of the Respondents, attempted to sustain the impugned order on an entirely new ground which had not even been raised before the State Transport Authority. He sought permission of this Court to urge that the Notification published by the Regional Transport Authority under S. 57(3) of the Act was defective for the additional reason that it did not contain a correct substance of the applications received by it. We refused to accede to this extraordinary request as it was clear that the proceedings in this case which have already become inordinately protracted by reason of the extremely belated and groundless objections raised by respondents 2 to 7 before the State Transport Authority could not reasonably be allowed to suffer further prolongation in that way.

(49) In my opinion, the impugned order of the State Transport Authority should be quashed and it is so ordered. The result of the Order we have made is that the State Transport Authority should now proceed to dispose of the appeals presented by respondents 2 to 7 on its merits and in accordance with law.

(50) In this Writ Petition, respondents 2 to 7 must pay the costs of the petitioner, Advocate's fee Rs. 100/-.

S.R. Das Gupta, C.J.

(51) I agree.

(52) Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //