Govinda Bhat, J.
1. The order of the Regional Transport Authority, Bellary (Respondent-2) made on 9-5-1962 granting a stage carriage permit to respondent-1 to operate between Bellary and Kampli Via Yemmiganur, Kurugodu and Kolur, has been challenged in these writ petitions preferred under Article 226 of the Constitution of India.
2. In order to appreciate the contentions of the parties, it is necessary to set out the material facts leading to the grant of the permit to respondent-1. On the invitation calling for applications for permit for trips between Bellary and Kampli, respondent 1 made an application. The first petitioner in W. P. 633/62 and the petitioner in W. P. 642 of 62, besides themselves applying for permits filed objections' to the grant of the permit to respondent-1. They also made applications for extension of their routes Bellary-Kurugod to Kampli. Those applications came to be considered by the second respondent, and an order was made on 18-2-1960 by which it found that there was need for granting a permit for four trips between Bellary and Kampli, and a permit was granted to respondent-1. The applications made by the first petitioner in W. P. 633/62 and the petitioner in W. P. 642/62 for extension of their routes and also their applications for independent permits for these routes were rejected. Against the grant of the permit to respondent-1, the petitioners preferred appeals to the State Transport Appellate Tribunal, which Tribunal confirmed the order made by the Regional Transport Authority. Aggrieved by that order of the State Transport Appellate Tribunal, the petitioners preferred appeals to the Revenue Appellate Tribunal. The Revenue Appellate Tribunal set aside the order of the Regional Transport Authority holding that need for the service had not been established. The appeal preferred by the petitioners against the rejection of their applications on extension of their services was kept pending before the Revenue Appellate Tribunal. Against the order of the Revenue Appellate Tribunal allowing the appeal preferred by the petitioners, respondent No. 1 preferred Writ Petition No. 1051/61 in this Court. At the time of the hearing of the said writ petition, the parties came to an understanding and filed a memo setting out the terms of the compromise. Taking that memo into consideration and also the relevant material on record, this Court made an order on 28-11-61. It is necessary to set out the operative portion of the order which reads thus:
'On careful examination of the materials on record and after listening to the submissions made by the parties before us, it seems to us that this is a case in which we should come to' the conclusion, on the basis of various sets of materials to which we have referred in the Course of this order, that the State-Transport Appellate Tribunal very rightly reached the conclusion that there was an indisputable need for the operation of a stage carriage between Kampli and Bellary on the route proposed by the petitioner. The fact that we can come to this conclusion is also demonstrated by the statements made by the respondents in this case that we may direct the Regional Transport Authority to grant a permit to the petitioner permitting, him to make two single trips between Kampli and Bellary. The implication of this statement made by the respondents on the basis of which they want us to take a consent order in the manner stated to the joint memo filed by them to-day, is the recognition of the correctness of the finding of tho State Transport Appellate Tribunal about the existence of the need found by it and which was displaced by the Revenue Appellate Tribunal on entirely mistaken suppositions.
We accordingly issue a direction to the Regional Transport Authority to make necessary modifications in the permit granted to the petitioner in accordance with the memo produced before us by the parties today. In that memo it has been stated that the petitioner would withdraw his objection to the grant of the extension of the route from Kurugodu to Kampli which was sought by respondents 2 and 3 in the appeal which is now pending before the Mysore Revenue Appellate Tribunal in Appeal No. 974 of 1961. Since it is clear from tie various materials referred to by the State Transport Appellate Tribunal to which we have adverted in the course of this order, that the preponderance of public opinion and of the various authorities was that there was a need for the operation of at least two services from each end between Kampli and Bellary, it is obvious that on the withdrawal by the petitioner of his objection to the extension of the route sought by respondents 2 and 3, the Revenue Appellate Tribunal would have ordinarily no option but to grant to those respondents the extension wanted by them'.
3. On the basis of the said order, respondent-1 obtained two permits for the route in question. At that time, Appeal No. 974/61 preferred by the petitioners was pending before the Revenue appellate Tribunal. Respondent-1 withdrew his objections to the extension prayed for by the petitioner and accordingly, the Revenue Appellate Tribunal, 'by an order made on 1-5-62 directed the issue of permits granting extension to the petitioners in accordance with the order of the High Court. In the meantime, on 20-1-1982, respondent-1 applied to the Regional Transport Authority, Bellary for grant of a permit for two additional trip's between Bellary and Kampli via Kurugodu. That application, after compliance with the provisions of Section 57(3) of the Motor Vehicles Act, came up for hearing on 3-4-62. The petitioners objected to the grant of the permit to respondent-1. On 9-5-62, the Regional Transport Authority passed a, resolution' granting the permit to respondent-1. It is against the said order, the above writ petitions have teen preferred. W. P. 633/62 was filed in this 'Court on 31-5-62 and it was admitted on 7-6-1962.
4. A preliminary objection has been raised 'by Sri. S. K. Venkataranga Iyengar learned counsel for respondent-1, that since the petitioners have an adequate alternate remedy of appeal before the statutory authorities provided under the Motor Vehicles Act, we should refrain from exercising powers under Article 226 of the Constitution in order to grant relief to the petitioners. In reply, Sri. N. S. Narayan Rao, learned counsel for the petitioners, submitted that on the date of the filing of the writ petition, there was not in existence a State Transport Appellate Tribunal and therefore, the petitioners were justified in seeking relief under Article 226. Further, he argued that since, he has raised a contention that the Regional Transport Authority, Bellary, which made the impugned order, was not properly constituted as provided under Sub-section (a) of Section 44 by inclusion of a non-official member and that the question of the legality of the constitution of the 'Regional Transport Authority could not be raised before the statutory Tribunals, the appropriate remedy was under Article 226. In paragraph 16 of the affidavit filed in support of W. P. 633/62, it was specifically averred that 'No person has tilt today been appointed to act as the Mysore State Appellate Tribunal and as such the petitioners are practically without a remedy even though under Section 64 of the Motor Vehicles Act, an appeal is provided for'. The affidavit was sworn on 22-5-1962, though the Writ Petition was filed on 31-5-62. In paragraph-11 of the counter-affidavit filed on behalf of the first respondent, the contention advanced was that a notification dated 28-5-62 appointing the State Transport Appellate Tribunal has been issued, but he does not state that by 31-5-62, when the writ petition was filed, that notification had been published in the Gazette and therefore, the petitioners had notice of the constitution of the Appellate Authority. Apart from the question of the constitution of the Appellate Tribunal, the petitioners have raised an important question concerning the constitution of the Regional Transport Authority under Section 44(2) of the Act. In Janta Transport Co-operative Society Ltd. and Anr. v. The Regional Transport Authority, Jaipur, (FB) the view taken was that the Inclusion of non-official member in the Regional 'Transport Authority is mandatory and non-inclusion of such a member would invalidate the constitution of the committee. There is no decision of this Court dealing with that question. Since the petitioners challenged the constitution of the Regional Transport Authority, on the ground that there was no non-official member appointed to that authority that question could properly be urged only in the writ petition. Having regard to these circumstances, we are unable to accede to the preliminary objection raised by Sri. S. K. Venkataranga Iyengar on behalf of respondent-1. The preliminary objection is, therefore, overruled.
5. Sri N. S. Narayana Rao, learned counsel for the petitioners, has challenged the order of the Regional Transport Authority on the ground that there is a clear error apparent on the face of record. This contention of the learned Counsel, in our opinion, is well-founded. Under Section 47 of the Act, the authority competent to grant a permit has to decide the question of the need for the grant as a condition precedent to the exercise of the power. The Regional Transport Authority has not considered the question of any fresh need that may have arisen subsequent to the order of the High Court in W. P. 1051/61. The basis of the decision of the Regional Transport Authority in granting the permit to respondent-1 is the need found to have existed for four trips by its earlier order dated 18-2-60 in subject No. 3, which was ultimately accepted by this Court in W. P. 1051/61 On a perusal of the order of the Regional Transport Authority, it is clear that it proceeded on the assumption that the High Court has found the need for four trips and that the permit for two trips had been granted to the first respondent pursuant to the order made by the High Court and that the need for two more trips have to be satisfied by the grant of fresh permit by the Regional Transport Authority. The preamble to the order of the Regional Transport Authority reads thus:
'Heard the applicant and the objectors. Applicant states that there is necessity for the grant of two additional trips as had already been decided by the R.T.A. Bellary in subject No. 3 dated 18-2-1960, after ascertaining the need and confirmed by S.T.A.T., in their special subject No. 8(a), dated 24-9-58, and the High Court in W. P. No. 1051 of 1961. The Hon'ble High Court have come to the conclusion that there is need for grant of four single trips. Permit has been granted for two single trips. Hence, he urges that the application for grant of additional two trips may be sanctioned. It is stated that the parties have agreed to have two trips between Kampli and Bellary, with a view to get an earlier decision on a long pending case.'
6. The body of the resolution of the Regional Transport Authority reads thus:
'This authority has carefully considered the subject No. 16 of the application. The subject No. 3 dated 18-2-60 of this authority was also considered carefully. This authority has given strong reasons establishing the need for introducing four single trips from Kampli to Bellary via Yammieanur, Kurugodu and Kolur. Accordingly, the R.T.A. had granted permit, after deciding that there was imperative need to introduce four single trips. The decision of the R.T.A. was appealed before the M.S.T.A.T and it was upheld after considering this question thoroughly in all its aspects.....
The High Court have further come to the conclusion that the S.T.A..T., have very rightly reached the conclusion that there was an additional indisputable need for the operation of a stage-carriage between Kampli and Bellary on the route proposed by the petitioner.....
The Regional Transport Authority have considered the objections of all the objectors. The objections made in subject Nos. 14, 15 and 16 have not been considered because this subject is pending before the R.T.A. for a long time and deserves preference over all applications. Those applications have no bearing on this subject because they are for fresh grants whereas in this case it is only a variation of the permit granted by this authority. Hence, the applications in subject Nos. 14, 15 and 16 were rejected under Section 47 of the Motor Vehicles Act 1939 with a view to consider the application of the petitioner to satisfy the need as already decided by the S.T.A.T., and the Hon'ble High Court. The R.T.A. therefore comes to the conclusion that two additional trips between Bellary and Kampli via Kolur, Kurugod and Yemiganur to provide additional facilities to the travelling public, be granted.
As has already been decided by this R.T.A. in subject No. 3 dated 12-2-60 the applicant has got all the qualifications of an efficient operator and by granting two more trips on this route he will be able to maintain an economical service.'
7. It is clear, on a perusal of the order of the Regional Transport Authority, that it misconstrued the order of the High Court made in W. P. 1051/61. The impugned order erroneously assumes that the question of need has been decided by the State Transport Appellate Tribunal and the High Court in proceedings arising out of the order of the Regional Transport Authority dated 18-2-1960, and the High Court has left it to the Regional Transport Authority to select the applicant for the permit. There is no finding recorded that any fresh need for any extra service has arisen in addition to the four trips for which appropriate provision had been made by the order of the High Court by directing the grant of two trips to respondent-1 and the grant of extensions to the two petitioners who were respondents 2 and 3 in W.P. 1051/61. If the Regional Transport Authority had read the order of the High Court carefully, as it ought to have, there was no scope for such mis-understanding. If the Regional Transport Authority has not based its decision entirely on the need established in the prior proceedings, but had reached the conclusion that there was (no?) fresh need, as it is entitled to determine, such an order would not have been open to criticism. Since the Regional Transport Authority on a total misconception of the order made by the High Court, has proceeded to consider the application of Respondent-1 in order to satisfy a need which did not exist, it is clear that there is an error apparent on the face of the record. Therefore, the order impugned, in our opinion, cannot be allowed to stand uncorrected, and accordingly, it is quashed.
8. Though the impugned order is quashed on the ground that it suffers from error apparent oil the face of the record, the application of respondent has to be considered afresh by the Regional Transport Authority in accordance with law. But the petitioner raised the objection that the Regional Transport Authority, Bellary, has not been constituted, in accordance with the provisions of Section 44(2) of the Motor Vehicles Act, 1939, hereinafter called the Act, and therefore, it becomes necessary to consider that contention.
8a. It is common ground that the Regional Transport Authority, Bellary, as constituted at the relevant point of time did not include a non-official member. The decision on the question whether it is mandatory that the Regional Transport Authority must include a non-official member depends on the construction to be placed on Sub-section (a) of Section 44 of the Act. The Sub-section reads:
'A State Transport Authority or a Regional Transport Authority shall consist of a Chairman who has had judicial experience and such other officials and non-officials, not being less than two, as the State Government may think fit to appoint...........'
9. Reliance is placed by the learned counsel for the petitioners on the words 'Regional Transport Authority shall consist, of such other officials and non-officials, not being less than two.' Learned counsel argued that if the Legislature did not intend that a non-official member also should be appointed, there was no purpose in the employment of the words 'officials and non-officials' and it would have been sufficient to use the word 'persons' instead of the words officials and non-officials'. In support of his contention, learned' counsel relied on the decision of a Full Bench of the Rajasthan High Court in (FB). Learned counsel relied on the following passage in the judgment of Dave, J., with whom the other two Judges agreed so far as this question is concerned:
'At the same time, we find it difficult to accept the view that the Legislature meant to use the words 'officials and non-officials' as one unit. If that were so, it would not have wasted two words, i.e., (1) officials and (2) non-officials.
It would have been sufficient to use one word 'persons' instead of 'official and non-official'. The use of these two words clearly indicates the intention of the Legislature to the effect that it wanted to enjoin upon the State Government to appoint members both from the official and from non-official groups. It was not considered proper to lay down the exact number of officials and of the non-officials or a ratio between the two; but it certainly appears to be the intention of the Legislature that whatever may be the number of the members of the body which the Government may think fit to appoint the said number must not be less than two besides the chairman and that out of them, at least one must be an official and one must be a non-official.
It is left to the discretion of the. State' Government to vary the number of the non-officials and the officials but it is not left to it to, dropout one of two groups altogether. In short, the Legislature has in its wisdom, laid down that the Regional Transport Authority must be representative both of the official group and the non-official group of, persons and if one of them is left out, the constitution of the body would not be according to law.'
10. The use of the words 'official and non-official instead of one word 'persons' in the opinion of the learned Judges of the Rajas than High Court, indicates that the Legislature enjoined upon the State Government to appoint members both from the official and from non-official groups. The decision of the Andhra High Court in Amaravathi Transport Co. v. State of Andhra, AIR 1956 Andhra 232 was explained in the Full Bench case on the ground that that decision rested on the proviso to Sub-section (2) of Section 44 added by an amendment introduced by the Provincial Government. The sub-section with the proviso which came up for interpretation before the Andhra High Court read thus:.
'A Provincial Transport Authority or a Regional Transport Authority shall consist of such
number of officials and non-officials as the Provincial Government may think fit to appoint......'
Provided that if the Provincial Government thinks fit, the Provincial Transport Authority or a Regional Transport 'Authority may consist of a single official'.
11. Subba Rao, C. J., as he then was, who delivered the judgment in AIR 1956 Andhra 232 expressed the view that the words 'officials and non-officials' are taken as one unit and it is made the field of selection, discretion being given to the Government to appoint any one from that unit. That interpretation of the Sub-section, in the opinion of the learned judge, found support from the proviso added by the Provincial Legislature. This is what the learned Judge stated:
'Learned counsel for the petitioner relied upon the words 'shall consist of such number of officials and non-officials as the Provincial Government may thinks fit to appoint' and argues that the Provincial Government cannot appoint only from one of the two categories i.e., either officials or non-officials to the exclusion of the other. This argument appears to be plausible. The Legislature obviously intended and indeed expected the Government to give aa opportunity to non-officials also to take part in the Administration of these Boards. But, the question is whether it is obligatory on the Government to select from both the groups. The words, 'officials and non-officials' are taken as one unit and it is made the field of selection, discretion being gives to the government to appoint out of the group. The learned counsel suggests that, in the context, the conjunction 'and' should be read as 'or'. But if the conjunction 'and' is substituted by the conjunction 'or' the selection by the Government would be confined only to one or other of the two categories. It would not be empowered to select from both the categories, at the same time. Therefore, in our view, the Legislature rightly used the conjunction 'and' instead of the word 'or'.
But it is said that, if the contrary construction is accepted, it would lead to another anomaly viz., that the Government may exclude the non-officials or officials altogether and confine their selection to one of the two groups which could not have been the intention of the Legislature. Though ordinarily it is expected of the Government to appoint from the two groups, there may be extraordinary circumstances compelling the Government to confine their selection to only one of the two groups.
So, the Legislature gave a wide discretion to the Government, enabling them to select from both the groups or only from one and, to achieve that object the conjunction 'and' was used instead of 'or'. That was the intention of the law-makers is also clear from the proviso, which authorises them to appoint a single official to the regional authority.
If a single official can be appointed if the Government thinks fit, it would be anomalous to hold that the Government cannot appoint more than one official to the Transport Authority. If It is true that if the provisions of the main Section are clear and unambiguous, they must be given effect to but where there is ambiguity, the following rule laid down by Maxwell on Interpretation of Statutes, Edn. 10 at page 132 may usefully be invoked.
'The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together is to prevail.' If the entire section along with the proviso is read together, any ambiguity that might otherwise ' appear in the section is dispelled. Briefly, the construction may be stated thus: The field of selection for appointment to the Provincial Transport Authority is 'officials and non-officials' treated as one unit. The Government may appoint from both the groups, or exclusively from either of the two groups. It may, if it chooses, appoint only a single official. So construed, in the present case, the Regional Transport Authority consisting of three officiate was validly constituted.'
12. Dave, J., was of the view that the learned Judges of the Andhra High Court were led to express their opinion on the construction of Section 44' (2) because of the language of the proviso. On a careful perusal of that judgment, however we do not think that their decision did rest entirely on the support derived from the language of the proviso. Having interpreted 'the main Sub-section and the words 'officials and non officials' therein as constituting one unit of the field of selection, that construction was sought to be supported by the, language of the proviso.
13. The question is whether the words 'officials and non-officials' are to be construed as one unit for selection or the two form independent units from each of which the Government must make the selection. In our opinion, if the intention of the Legislature was that 'officials and non-officials' ought to constitute two separate fields for selection, then that intention would have been expressed explicitly. We do not find anything in the object and scheme of the Act that the Legislature intended that the State Transport Authority and the Regional Transport Authority should have the representatives of officials and non-officials The object of using the words officials and non officials in our view, was that the Legislature intended that the Government while making the selection at its discretion should consider the suitability of persons belonging to the Official as well as non-official classes taken as a single unit. If the legislature had used the word 'persons' instead of 'officials and non-officials' the Legislative policy may not be clear as to the field of selection. It is at the discretion of the Government to appoint both officials and non-officials or to appoint only officials or non-officials. From the mere use of the word 'shall' in Section 44 (2) it does not follow that it is mandatory that the Government most appoint both officials and non-officials members. In our opinion, the direction, to associate non-officials is not mandatory, but only directory, and any non-compliance by the State to include non-official, would not invalidate- the constitution of the Regional Transport Authority. With respect, we are unable to agree with the view of the Rajasthan High Court. Therefore, the contention of the petitioners that the Regional Transport Authority, Bellary, has not been validly constituted, cannot be accepted.
14. For the above reasons, these writ petitions succeed and the impugned order is set aside. The Regional Transport Authority will now proceed to dispose of the application of respondent-1 in accordance with law. Respondent 1 will pay the costs of the petitioners. Advocate's fee Rs. 100/- one set.
15. Writ petition allowed.