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Kasireddy Varahalu Vs. State of Andhra Pradesh Home (Transport Iii) Department, Hyderabad by Its Secretary and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal Nos. 136 and 138 of 1966
Judge
Reported inAIR1968AP1
ActsMotor Vehicles Act, 1939 - Sections 43A, 47, 47(1) and 57; Andhra Pradesh Motor vehicles (Amendement) Act; ;Motor Vehicles Rules, 1940 - Rules 153B, 212 and 212(2)
AppellantKasireddy Varahalu
RespondentState of Andhra Pradesh Home (Transport Iii) Department, Hyderabad by Its Secretary and ors.
Appellant AdvocateP. Babul Reddy, ;E.P. Sikhamani, ;K. Amareswari and ;A.S.C. Bose, Advs.
Respondent AdvocateRamakoti, ;K. Mangachari, Advs. and ;4th Govt. Pleader
DispositionAppeal allowed
Excerpt:
.....tribunal is controlled by any such direction, that forges fetters on the exercise of quasi-judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well-accepted notion of judicial process. this position is so well established that we are reluctant to hold that in enacting section 43a the madras legislature in tended to confer power on the state government to invade the domain of the exercise of judicial power. it is somewhat unfortunate that though judicial decisions have always emphasised this aspect of the matter, occasion did not arise so long to consider the validity of the government order which on the construction suggested by the respondent would clearly invade the domain of quasi-judicial..........in not merely administrative matters but also matter: which form the area of the exercise of quasi-judicial authority by the tribunals constituted under the act. it was stated that there are several indications, such as the setting at the context of the section and the background against which the section was introduced, showing that the field covered by section 43a, is administrative and does not include the area which is the subject matter of the exercise of quasi-judicial authority by the relevant tribunals, and that on a fair and reasonable construction of section 43a, it ought to be held that the said section authorises the state government to issue orders and directions of a general character only in respect of administrative matters which fall to be dealt with by the state.....
Judgment:

P. Jaganmohan Reddy, C.J.

1. Before we set out the questions requiring consideration of this Full Bench, it would be necessary to set out the facts briefly. The Regional Transport Authority, Visakhapatnam, invited applications on 18-7-1957 for two permits, under Section 57 of the Motor Vehicles Act I hereinafter called 'the Act'). on the route Visakhapatnam to Narasannapeta Out of the number of applicants, two persons were granted permits by the Regional Transport Authority on 31-5-1958 23 Persons filed separate appeals to the State Transport Authority, the then Appellate Authority which considered the matter on 27-11-1958. It set aside the order of the R T. A. and remanded the case. By virtue of writ petitions in the High Court, consideration by the R. T. A. was stayed. It was only on 4-6-1962 the matter was considered afresh by the R. T. A., who grant-ed two permits one to each of the petitioners in the Writ petitions. Appeals were again preferred to the Appellate Authority. In the appeals, a preliminary objection was taken that the R. T. A. had applied the law as it stood on 4-6-1962, the date of fresh consideration instead of applying the law which prevailed on the date when the applications were called for This preliminary objection was upheld by a judgment of the Appellate Authority on 18-7-1964 and the matter was remanded for consideration of the applications with the direction that the R. T. A. should dispose of the matter keeping in view not only Section 47 but also G. O. Ms. No. 1037 dated 28-3-1953 issued under Section 43A had to be applied in evolving the relative merits of the applicants and not Rule 153-B which came into force on 26-11-1960. Against this order, the petitioners filed a revision to the Government, which however confirmed the order of the appellate authority on 6-4-1965 The two writ petitions, out of which these appeals arise, were filed thereafter to quash those orders.

2. It was contended before our learned brother, Gopal Rao Ekbote, J., that G. O. Ms. No. 1037 dated 28-3-1953 by which the Government issued certain directions under Section 43A of the Act, cannot be taken into consideration by the R. T. A. as directed by the Appellate Authority and confirmed in revision by the Government. This contention was accepted; and while allowing the writ petitions quashing the direction of the Appellate Authority to take into account G.O. Ms. No. 1037 and remanding the matter to the R.T.A., the learned Judge also directed the R.T.A. to take into consideration the law as it existed on the date when the proceedings were initiated, and dispose of the matter in accordance with law following a judgment of a Bench of this Court consisting of Chandra Reddy, C. J.. and Narasitnham, 3., in WP Nos. 8, 10 and 12 of 1968 D/- 26-9-1968 (Andh. Pra). It is this latter direction that has given rise to these appeals

3. Having regard to the observations of the Bench which appear to conflict with the decision of the Supreme Court in B. Raja-gopala Naidu v. S.T. A. Tribunal, Madras, : [1964]7SCR1 . the matter was referred to Full Bench.

4. Before us, two contentions have been urged namely (1) that when the basis of the remand order is gone, the appellate authority should have been directed to dispose of the matter afresh and the learned judge ought not to have remanded the matter to the R.T. A.: and (2) that the appeal should be considered according to the law applicable at the limp when the R.T.A granted the permits.

5. A third question was also sought to be urged namely, that when the Appellate-Authority which remanded the matter was not property constituted, as the Transport Commissioner nominated two of the members, while the Act, requires the State Government to constitute it, the remand order itself was invalid. But this point was not pressed and was given up, because it was not taken either before our learned brother or at any early stage.

6. On the first question, it may be stated that in Raman and Ram an Ltd. v. State of Madras. : AIR1959SC694 , Subba Rao, J., (as he then was) delivering the judgment for himself and Imam. J., had held that on a strict interpretation of G.O. Ms. No. 3353 of 1954, the 4th respondent in that case would not have been entitled to the permit, but as the said order was not law but was only an administrative direction, it could not affect the validity of the order of the Central Road Traffic Board, it having made the order having regard to the consideration laid down in Section 47 of the Act Sarkar, J.. (as he then was) on the either hand observed that (i) it being far from clear that a quasi-judicial tribunal is not entitled, in hearing an appeal from another such tribunal to apply a Rule which has come into existence since the decision under an appeal, there could be no error apparent on the face of the record; and hence no writ of certiorari could issue in the case; (ii) that there was at least grave doubt if G.O. Ms No 1689 which revived G.O. Ms. No. 1037. was not intended to be applied to pending appeals and that would he another reason for saying that it was not clear that the Board was in error in applying it; and (iii) that if an order under the section is one to the observance of which a person is entitled, that would be a law, a mistake of which would justify the issue of the writ at his in stance, that the whole justification for a writ or certiorari is to prevent, where no other remedy is available, a patent injustice being allowed to stand, and that it would be strange if a person was entitled to the observance of a rule and was held not to have a remedy for its breach. In this view, their Lordships dismissed the appeal, Subba Rao, J. (as he then was) observed at page 701.

'The orders made and the directions issued under Section 43A could cover only the administrative field of the officers concerned and therefore any direction issued thereunder was not law regulating the rights of the parties. The order made and the directions issued under Section 43A of the Act cannot obviously add to the considerations prescribed under Section 47 on the basis of which the tribunal is empowered to issue or refuse permit, as the case may be. There was, therefore, no change in the law pending the appeal so as to affect the appellant's vested right. In this view, the appellant cannot question the validity of the order of the Central Road Traffic Board on the ground that it decided the appeal on a law that was made subsequent to the issue of the permit to him'.

Even applying, different process of reasoning, Subbarao, J., (as he then was) said that the same result would be arrived at: i.ewhen the appellant applied for a permit for he must be deemed to have had the knowledge of the fact that his application would be disposed of by the State Transport Authority in accordance with orders and directions of a general character issued by the State Government; that the directions were not new law that came into existence pending the appeal but only issued under a law that was in existence even at the lime he applied for a permit; that the law was that embodied in SECTION 43A of the Act, namely, that the Government could issued directions binding on the authorities concerned and that law was a preexisting one and the application had to be disposed of subject to that law till it was finally terminated by an order of the highest tribunal in the hierarchy.

7. In W.P. Nos. 8, 10 and 12/83 dated 26-9-1963, to which reference has already been made, the Bench had considered the judgments of the Supreme Court and observed as follows:

'The principles adumbrated by their Lordships in those rulings clearly indicate that Section 43A did not stand abrogated by virtue of either Section 43 or Section 44 as they exist today. These directions under Section 43A serve as an aid to the Tribunals in the proper discharge of their duties.'

After examining Section 47 of the Act.

Chandra Reddy, C. J., Said:

'A comparison of the provisions of Section 47 and Section 43A in question clearly establishes that the directions and orders to be issued by the State Government were intended to serve the public good and not to act contrary to the considerations envisaged in Section 47. It is difficult to postulate that the instructions and directions under Section 43A are foreign to the considerations governing the issue of permits under Section 47. . . ...... That being the position, unless there is a definite inconsistency or repugnancy between the provisions of the Act as amended and unamended provisions, it could not be predicted that the latter provisions were repealed.'

It was also contended before the Bench that the law as contained in Rule 163 of the Motor Vehicles Rules that was in force at the time when the matter was taken up for reconsideration, should have been applied and not G. O. Ms. No. 1037 which had ceased to exist by that time. In support of this contention, Jaggamma v. Satyanarayanamurthi, 1957 Andh LT 881 = (AIR 1968 Andh Pra 5821 and N.M.T. Co-operative Society v. State of Raj-asthan. : [1964]1SCR220 were cited While pointing out that the Supreme Court case did not touch the question to be answered by them and that 1957 Andh LT 881 = (ATR 1958 Andh Pra 582) did not support the proposition, it was observed as follows:--

'We are firmly of the opinion that it is the law as it existed at the time the action was commenced that governs the proceedings and not the law that is in force at the time of re-hearing of the matter. The old law existsfor the purpose of enforcing the rights which were originally claimed.'

Again, after citing Maxwell's Interpretation of Statutes, Chandra Reddy, C. J.. observed:

'It is too late in the day to contend that the old law will cease to function with reference to the claims made during the time it was in force, if the matter happens to be re-heard. It is now well settled by a series of decisions that the old law governs the action throughout its career unaffected by subsequent alterations in the law, the classical example of the rule being the Colonial Sugar Refining Company, Limited v. Irving, 1905 AC 369, which has been often quoted with approval by the Supreme Court.'

After the above judgment of the Bench, the judgment in : [1964]7SCR1 , was pronounced by the Supreme Court. In this decision, while pointing out that the words of Section 43A in respect of any matter relating to road transport are undoubtedly wide enough to take in not merely administrative matters but also matter: which form the area of the exercise of quasi-judicial authority by the Tribunals constituted under the Act. It was stated that there are several indications, such as the setting at the context of the section and the background against which the section was introduced, showing that the field covered by Section 43A, is administrative and does not include the area which is the subject matter of the exercise of quasi-judicial authority by the relevant tribunals, and that on a fair and reasonable construction of Section 43A, it ought to be held that the said section authorises the State Government to issue orders and directions of a general character only in respect of administrative matters which fall to be dealt with by the State Transport Authority or Regional Transport Authority under the relevant provisions of the Act in their administrative capacity. In this view, it was held that Section 43A did not authorise the Government to issue orders and directions in exercise of their judicial or quasi-judicial powers. Gajendragadkar, C.J. considered the judgments in Raman and Raman's case. : AIR1959SC694 and Abdulla Rowther v. The State Transport Appellate Tribunals. Madras, AIR 1959 SC 898 and observed at page 1S77 thus:--

'It is necessary to emphasise that in both these cases no argument was urged that the impugned order is itself invalid and should have been ignored by the Tribunal exercising quasi-judicial authority under the relevant provisions of the Act. The Court was no doubt called upon to consider the character of the impugned order and some of the reasons given in support of the conclusion that the impugned order is administrative or executive seem to suggest that the said order would, prima facie, be inconsistent with the provisions of Section 43A which received a narrow and limited construction from the Court. Nevertheless, since the point about the validity of the impugned order was not raised before the Court,this aspect of the question was not examinedand the discussion and decision proceeded on the basis that the impugned order was valid.'

It was pointed out by their Lordships that since the question was raised before them, it had become necessary to examine the validity of the impugned order, and after due consideration, their Lordships held it to he invalid. At page 1579. Gajendragadkar. C. J: said:--

'If the exercise of discretion conferred on a quasi-judicial tribunal is controlled by any such direction, that forges fetters on the exercise of quasi-judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well-accepted notion of judicial process. .... But that law and the provisions of law may legitimately do cannot be permitted to he done by administrative or executive orders. This position is so well established that we are reluctant to hold that in enacting Section 43A the Madras Legislature in tended to confer power on the State Government to invade the domain of the exercise of judicial power. In fact, such had been the intention of the Madras Legislature and had been the true effect of the provisions of Section 43A. Section 43-A itself would amount to an unreasonable contravention of fundamental rights of citizens and may have to be struck down as unconstitutional. That is why the Madras High Court in dealing with the validity of Section 43A had expressly observed that what Section 43A purported to do was to clothe the Government with authority to issue directions of an administrative character and nothing more. It is somewhat unfortunate that though judicial decisions have always emphasised this aspect of the matter, occasion did not arise so long to consider the validity of the Government order which on the construction suggested by the respondent would clearly invade the domain of quasi-judicial administration'.

In this view, their Lordships held that the impugned order was outside the purview of Section 43A. inasmuch as it purported to give directions in respect of matters which have been entrusted to the Tribunals constituted under the Act and which have to be dealt with by these Tribunals in a quasi-judicial manner.

8. As already pointed out, our learned brother, Gopal Rao Ekbote, J., at the outset Itself, having regard to this decision, accepted the contention that O.O.Ms. No. 1037 was not law.

9. We have now to consider whether the law as it existed on the date of the applications for permit, or the law existing on the date of the consideration of the applications that is applicable in disposing of the applications for permits. No doubt the Bench of this Court in WP Nos. 8, 10 and 12 of 1963, (Audh Pra) applied the principle in Colonial Sugar Refining Company's case, (1905) A.C 869 and held that the law which is to be applied is that which is applicable on the date when the applications were made. But it iscontended that this is contrary not only to the observations of the Supreme Court, but also to the provisions of Section 47 of the Act and Rule 212 of the rules framed under the Act In Raman and Raman's case, : AIR1959SC694 what fell for consideration was whether the Central Road Traffic Board was wrong in applying G.O.Ms. No. 1037 when it decided the appeal on the R.T.A's decision. It may be stated that G.O. Ms. No. 1037, which had been superseded by G.O. Ms. No. 3353 of 1954 on 18-11-1954, was revived by G.O. Ms. No. 1689 issued on 15-6-1955. i.e., after the date of the decision of the R.T.A. given on April 9, 1955. It was assumed that G.O. Ms. No. 1689 did not revive G.O. Ms. No. 1037 with retrospective force. Sarkar, J., (as he then was) in considering this question observed at page 705 thus:

'It may be that when one regular and ordinary court hears an appeal from the decision of another such court, it cannot, generally speaking, take into consideration a law which has been passed since that decision. But it is far from clear the the same rule applies when an appeal from the order of a quasi-judicial tribunal is heard by another such tribunal, as is the case here. No authority to warrant such a proposition was cited and as at present advised, I am not prepared to assent to it,'

While the above observations show that no definite view has been expressed, nonetheless, a reading of Section 47 with Rule 212 makes it evident that the law that has to be applied is the law at the time of the consideration of the applications for permits and not the law at the time when the applications have been first made. Section 47(1) says that a Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the several matters specified therein. It is therefore clear that the several matters that have to be taken into consideration are those that are existing on the dale when the applications are considered. One of the elements for screening an application as set out in Rule 212(iii)(2) is that if the history sheet of the operator is not clean and contains more than six entries relating to offences committed within twenty four months preceding the dale of grant of the permit, that application cannot be considered. The history sheet which has to be considered is the history sheet as existing on the date of the grant of the permit, so that this again reinforces the contention that the law applicable or the circumstances that have to be taken into consideration are those which exist on the date when the permit is to be granted.

10. It may be observed that no person has an inherent right to the grant of a permit to ply motor vehicle or to its renewal which is entirely within the discretion of the Transport authorities. Unlike in suits to enforce rights, an applicant for a permit cannot claim to have a vested right. If he had a vested right, any subsequent change of law cannot take that right away, unless it is madeapplicable retrospectively. The provisions of Section 47 or other provisions of the Motor Vehicles Act for granting a permit or its renewal are directory and vest a discretion in the authorities and they do not confer a vested right. In a Bench of the Orissa High Court in N.O.T.C. Private Ltd v. R.T.A. Cuttack, : AIR1957Ori121 , where Narasimham, C. J.,

after referring to the decision of Jamnagar Motor Transport Union Ltd. v. State of Saurashtra, AIR 1965 Sau 57 agreed with the observations therein made. At page 124. the learned Judge observed:

'Section 47 of the parent Act specified various matters which the Regional Transport Authority shall have regard to in granting or refusing to grant permits, and in the first part of Sub-section (2) of Section 58 it is clearly stated that a permit may be renewed on an application. It is true that the word 'may' sometimes has the force of shall but in the context it does not appear to have an imperative force.

It is also well settled that the phrase 'have regard to' has generally directory effect and not a binding effect ...It is only if the Regional Transport Authoritydecides on granting permits to private agenciesthat the question of preferring an old permit-holder as against a new applicant would ariseby virtue of the proviso to Sub-section (2) ofSection 68. But such a provision would not confer a vested right of renewal in favour of theapplicant.

Hence, once it is held that the applicant had no vested right of removal on 5-11-1966, there is no reason why the general rule that an application should be disposed of in accordance with the law as It stands on the day on which it is taken up for consideration should not apply.'

In P.S.N. Motors Ltd. v. Gangadhara Menon. : AIR1962Ker34 , Ansari, C. J. and Madhavan Nair, J., held that qualifications acquired after the submission of the applications but before the passing of the order of the RTA granting the permit can he considered and if so, the qualifications acquired after the first order of the RTA and before reconsideration of the matter by the RTA as per the directions of the appellate authority should be accepted by the RTA when he is passing the final order to grant the permit.

11. In our view, the observations of the Bench in W P Nos. 8, 10 and 12 of 1953 (Andh Pra), basing as it did upon the principle enunciated in Colonial Sugar Refining Company's case,. 1905 AC 369 (supra) as to the law applicable to appeals is not warranted either on principle or authority, in considering the applications for granting of permits under the Motor Vehicles Act. We accordingly allow the appeals without costs, set aside the order of the Government and the Appellate Authority, and direct the Appellate Authority to dispose of the appeals in the light of the observations made above on consideration of the law that was in force on the date when the RTA granted the permit. Advocate's fee Rs. 100.


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