(1) The petitioner, Janardhana Rao, has filed this writ petition praying for the issue of a Writ in the nature of Mandamus or any other appropriate Writ or direction, directing the two respondents to forbear from proceeding further in pursuance of their proceedings in G.O. Ms. No. 822 dated 29-4-1963 (Home Transport-III) and the consequential Notification in R. No. 7245-A2-62 dated 7-5-1963. There are two respondents in this case. The first respondent is the State of Andhra Pradesh. The Second respondent is the Regional Transport Authority, Sirkakulam. Both are represented by the learned Government Pleader.
(2) The G.O. runs as follows:-
'The Planning and Development wing in the State Transport Authority's office conducted the survey of the traffic in Srikakulam Dist. at some important places on the route Nivatgam to Vizianagaram vis Srikakulam, Nathavalasa and Denkada and considered the need for opening of new route from Nivagam to Visianagaram via. Srikakulam Nathavalasa and Denkada with two buses on from either end and for the grant of two stage carriage permits in respect of two buses on the above route basis on the statistics gathered during the course of the survey and also for the reasons that there are no direct bus transport facilities connecting the two places.
(2) The Government have examined the proposal with reference to the matters set forth in Section 47(1) of the Motor Vehicles Act, 1939 and are satisfied with the need .....
(3) Therefore, in exercise of the powers conferred by Section 43-A Madras Amendment of the Motor Vehicles Act 1939 (Central Act IV of 1939) the Governor of Andhra Pradesh hereby directs the Regional Transport Authority, Srikakulam to call for applications and place them before the Regional Transport Authority after following the usual procedure under the Motor Vehicles Act, 1939 for opening of new route from Nivagam to Vizianagaram via Srikakulam, Nathavalasa and Denkada with two buses one from either end and for the grant of two stage carriage permits thereon. The Regional Transport Authority, Visakhapatnam should also grant endorsements on the permits granted in respect of two buses on the route in question, for the portion of the route lying in its area.'
(3) The Notification by the Regional Transport Authority, Srikakulam dated 7-5-1963 runs as follows:-
'Applications are called for under Section 57(2) of the M.V. Act with a challan for Rs. 12 in prescribed from for the grant of two stage carriage permits on a newly opened route Nivagam to Vizianagaram via Srikakulam Nathavalasa and Denkada for the portion lying in Srikakulam Dist. to start one from either end.'
(4) In the affidavit in support of the Writ Petition, the petitioner has urged as follows. The Government has no jurisdiction to entertain a petition to open a new route and to grant two permits on such a new route. Still, the Government entertained a petition asking for such reliefs which was put in by some persons who were rivals of the petitioner in politics and business. The writ petitioner made representations regarding and above-mentioned petition and urged that there was no need for the proposed new route. But, the Government ultimately passed the impugned Order. S. 43-A (Madras Amendment) is repugnant to the provisions of the Motor Vehicles Act, 1939 as amended by the Central Act, 100 of 1956 and is, therefore, not valid.
Even if S. 43-A were valid, the Government can issue under it, only general directions. The directions contained in the G.O. are directions in particular matters of a case and, therefore, do not fall within the purview of S. 43-A. The Government could not have passed G.O. in exercise of its powers under S. 64-A as it was not acting in revision against any order of a lower Tribunal. The action taken by the Regional Transport Authority by issuing notification in pursuance of the G.O. is by way of practically abandoning its (R.T.A's) discretion and has, because of the G.O., practically nullified the rights of existing operators under S. 56(3) of the Act.
(5) On behalf of both the respondents, a common counter was filed urging as follows: The petitioner has no locus standi to question the opening of the new route. The G.O. is fully justified by S. 43-A. Even de hors the provisions of the Motor Vehicles Act, the Government have power to direct the opening of new route. Section 43-A perfectly valid and stands unaffected by Central Act 100 of 1956. The petitioner is motivated by his personal needs and not by public interest.
(6) Section 43-A of the Motor Vehicles Act as it is in force in Andhra Pradesh State runs as follows:-
'The provincial Government may issue such orders and directions of a general character as it may consider necessary, in respect of any matter relating to road transport, to the Provincial Transport Authority or a Regional Transport Authority; and such Transport Authority shall give effect to all such orders and directions.'
Section 43-A (Madras Amendment) comes in Chapter IV which bears title 'Control of Transport Vehicles'. No attempt has been made to substantiate the allegation in the Writ Petition that Section 43-A is repugnant to the amendments as introduced by Central Act 100 of 1956. Section 43-A as introduced by the Madras Amendment and its scope were considered by the Supreme Court in various decisions. Their Lordships did not indicate that it was ultra vires.
(7) In Raman and Raman Ltd. v. State of Madras, : AIR1959SC694 , their Lordships of the Supreme Court observed as follows: (at p. 699)
'... ... The words used in Section 43-A are very wide. It says that the State Government may issue orders and directions of a general character in respect of any matters relating to road transport. .. .. Section 43-A coming thereafter and before the sections conferring quasi-judicial powers on tribunals is indicative of the fact that the jurisdiction conferred under S. 43-A is confined to administrative functions of the Government and the tribunals rather than to their judicial function:
(at p. 701):
'The order made and the directions issued under Section 43-A 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 43-A of the Act cannot obviously add to the considerations prescribed under S. 47 on the basis of which the Tribunal is empowered to issue or refuse permit, as the case may be.'
In effect, their Lordships, after considering Section 43-A in detail, did not find anything which made it invalid. I find that there is no room to doubt the validity of Section 43-A.
(8) In Chittoor Conveyance Corpn. v. R.T.A. Chittoor (1960-2 Andh WR 447), the relevant facts were as follows: The Regional Transport Authority initiated a proposal for the opening of a new route that is, Chittoor-Nellipatala via Palamaner. Several persons filed objections to the opening of the new route. They included members of the public and also some bus operators. After considering these objections, the Regional Transport Authority passed a resolution recommending the opening of the new route to the State Transport Authority. The Chairman of the State Transport Authority approved of this recommendation. Shortly thereafter, the Regional Transport Authority invited applications for grant of permit for a vehicle on that route. Thereupon, one of the operators who had filed objections before the Regional Transport Authority, filed a Writ Petition in this Court questioning the legality of the proceedings calling for applications for grant of permit without furnishing him a copy of the order passed by the Regional Transport Authority. It was urged that the order of the Regional Transport Authority in the proceedings in which he initiated a proposal for opening of a new route was liable to be revised under Section 64-A of the Motor Vehicles Act as amended by the Parliament or under S. 64-A of the Motor Vehicles Act as introduced by amendment by the Madras State Legislature.
In the above judgment, it was observed as follows:- (at p. 450):
'But the question is whether the recommendation of the Regional Transport Authority for the opening of a new route is invested with the characteristics of an order under Section 47.......'
(at p. 451):
'The purpose of inviting representation is to ascertain the views and the wishes of the public, who are ultimately affected by the opening of new routes or by the variation of exising ones.
This is not a matter which concerns existing operators. The question of considering their representations or objections (whatever their may be called) would arise only at the time of the consideration of the applications for the issue of stage carriage permits. These persons are not concerned with the sanctioning of new routes. This function is preliminary to the statutory functions enjoined on the authorities under Sections 57 and 47. As such, it is an administrative act. Thus, these proceedings fell outside the purview of the Act and notice is issued pursuant to the administrative instructions contained in the G.O. referred to above and it does not owe its origin to any of the sections of the Act.'
Thus, the decision of the Division Bench makes it clear that the opening of a new route is an administrative act and that, in the proceedings relating to such opening of new route, the existing operators, as such, have no right to make any representation.
(9) Shri Babulu Reddy, the learned Advocate for the Writ Petitioner, relies on the following passage:-
(at p. 451):
'The decision to open a new route or to vary an existing route is purely a tentative one. As such, the rights, if any, of these operators are not affected as there is no adjudication by the Regional Transport Authority which entitles them to invoke Section 64-A of either of the two enactment's. It is open to the authority concerned after hearing objections to drop it. Such an adjudication may be the subject of an appeal, revision etc. There is no finality attached to the recommendation made by the Regional Transport Authority or to the approval of it by the Chairman of the State Transport Authority.'
In the judgment the following passage appears in continuation:- (at p. 451):
'In recommending the proposal, the Regional Transport Authority does not decide on individual applications and objections. The recommendation has a bearing only on general interest of the public. At that state, the operators do not come into the picture at all. They are in the same position as other members of the public, who could submit their representations to the Regional Transport Authority in regard to these proposals and no rights of theirs are injuriously affected by the initiation of this proposals or the approval thereof by the Chairman of the State Transport Authority.
A reading of the above passage read as a whole indicates that the order of opening a new route in an administrative act and not an adjudication and only preliminary to the statutory functions enjoined on the authorities and that in proceedings at a subsequent stage, the question of considering the representations or objections of existing operators can arise. This is further made clear by the following observations:
(at p. 452):
'It was inter alia decided by Balakrishna Ayyar, J. in W.P. No. 450 of 1958, Mudaliandan Mudaliar v. State Transport Appellate Tribunal, 1958-2 Mad LJ (NRC) 59, that sanction of a new route or the refusal to sanction it was purely an administrative measure and, in deciding matters general interest or policy, the Regional Transport Authorities need not hear any parties or furnish copies or reports of their officers. The learned Judge also held that proceedings relating to the determination of the question whether more buses should be put on a route was administrative in nature. This principle was adopted by Satyanarayana Raju J., in W.P. No. 270 of 1957 (Andh Pra.) With respect, we share this view of the learned Judges.'
(10) Shri D. Venkat Reddy, the learned Advocate for the respondents, contends that the petitioner has no locus standi to file this Writ Petition because he has not already applied for permits.
(11) In Abdul Mateen v. Ram Kailash, AIR 1963 SC 64 the relevant facts were as follows: The Regional Transport Authority advertised a new route and invited applications for stage carriage permits stating that there were two vacancies on the route. Several persons applied and the Regional Transport Authority granted permits to Abdul Mateen and another person. On appeal, the Appellate Authority cancelled the permit which had been granted to the appellant and instead, granted a permit to Sudhakar Sarma without interfering with the permit granted to the other person. Mateen filed an application to State Government under S. 64-A (Bihar Amendment), which was substantially similar to the Madras amendment but did not contain provision as in the latter for the Provincial Govt. acting of its own motion. The Minister for transport upheld the order of the Appellate Authority but took the view that the fats and circumstances justified the granting of another i.e., third permit and accordingly granted it to Mateen. One Pande had also made an application under Section 64-A but it had been dismissed. He filed a Writ Petition in the Patna High Court urging that, when dealing with an application under S. 64-A (Bihar Amendment), the Government had no power to increase the number of permits from the limit which had been fixed by the Regional Transport Authority. The High Court dismissed that Writ Petition. Mateen filed an appeal to the Supreme Court. He was a party in the Writ Petition and, as such filed appeal. The same contention was urged before the Supreme Court and was accepted by it.
In the course of the judgment, their Lordships observed as follows:- (at p. 67):
Section 47(3) is concerned with a general order limiting stage carriages generally etc., on a consideration of matters specified in S. 47(1). That general order can be modified by the Regional Transport Authority, if it so decides, one way or the other. But the modification of that Order is not a matter for consideration when the Regional Transport Authority is dealing with the actual grant of permits under Section 48 read with S. 57 for at that stage, what the Regional Transport Authority has to do is to choose between various applicants who may have made applications to it under Section 46 read with Section 57. That, in our opinion, is not the usage where the general order passed under Section 47(3) can be re-considered.. ..
The Scheme of the Act therefore, is that a limit is fixed under S. 47(3) and applications received are dealt with in the manner provided by Section 57 and permits can be granted under Section 48 subject to the limit fixed under S. 47(3) .. ..S. 64 clearly does not contemplate any appeal from an order under S. 47(3) .. ... .. for that order being a general order cannot be a ground for grievance to any individual who may have the right of appeal under S. 64.'
Regarding the manner in which limit of number of permits was fixed their Lordships observed as follows: (at p. 69):
'Now, the usual manner in which a Regional Transport Authority can fix a limit under S. 47(3) is by a resolution. Similarly, it can vary those limits by another resolution .. ..
(at p. 70):
'.. .. it follows that under S. 48, the Regional Transport Authority could not grant more than two permits and, therefore, the Appellate Authority also could not grant more permits under Section 64; nor could the revisional authority on an application made to it by an aggrieved person grant more permits. We have already said that it is not necessary to decide in this case whether it would be open otherwise to the Revisional Authority under Section 64-A as inserted by Central Act 100 of 1956 to revise a general order of the Regional Transport Authority passed under Section 47(3) ....'
(12) In R.T.A. Coimbatore v. S.M.C. S. Ltd., : AIR1964Mad454 , a question arose whether existing operators over a new route or sectors of new route which wa being opened, were entitled to copies of the orders of the Regional Transport Authority passed under Section 47(3) limiting the number of buses over the route, with a view of file revision petitions against such orders to the State Transport Appellate Tribunal under Section 64(2) of the Act. The learned Judges observed as follows: (at p. 456):
'It will be seen from the scheme of the Act that the question as to the limiting of the number of stage carriage permits over a particular route has to be decided only under Section 47 (3), that is, before calling for application the provisions of Section 57 and sub-clause (3) to that section specified in Section 47(1) to make representations in connection therewith, which implies that the representations can only be with reference to the applications made for the grant of stage carriage permit. That cannot, therefore, include any right to challenge the propriety of the order passed under Section 47(3). That this is the proper view to take will be plain if we refer to the history of Sections 47 and 48 .. ..
It would be clear from the above, (effect of the amendment by Act 100 of 1956) that whereas according to the sections as they stood prior to their amendment, the question of adequacy of existing passenger services or the need for the opening up of new routes, had to be considered at the time of the grant of the permit, under the amended provision, that matter has to be dealt with prior even to taking up the applications for consideration under Section 57.'
They also observed as follows (at p. 457):
'In other words, in limiting the number of stage carriages under Section 47(3), no right of any person stands interfered with and no existing operator can have any legitimate grievance till a permit is actually granted. In the later case, the operator would have a right of appeal. In all the other cases, he cannot possibly have any grievance. Therefore, an existing operator cannot have any right to challenge the order of the Regional Transport Authority made under Section 47(3). No revision can therefore lie at his instance against such an order.'
(13) In Executive Officer, Tirupati v. Ramachandra Naidu : AIR1966AP112 , the relevant facts were as follows: Two persons, Tirumalai-Tirupati Devasthanam and the Andhra Pradesh Road Transport Corporation filed petitions before the State Transport Authority for opening a new route at Vijayawada to Tirupati and for two permits for plying vehicles on that route. On receipt of the applications, the State Transport Authority called for objections. Several bus operators, including Ramachandra Naidu, filed objections to the opening of the route and grant of two permits contending, among other things, that he should have been allowed to apply for the permit himself. He was plying buses on portions of the new route. But, he could not apply for the permits for the new route (entire route) because another Section of the new route came under a scheme notified under Section 68-D of the Act. The permits were granted to the applicants. Ramachandra Naidu filed Writ Petition in this Court. His contention in that Writ Petition, that he had a locus standi to file it because his business was likely to be affected, was accepted and a Writ was issued against that order.
An appeal was filed and was disposed of by a Division Bench of this Court. The learned Judges observed as follows: - (at p. 297) (of Andh. WR): (at p. 113 of AIR).
Ramachandra Naidu) could not be against the grant of permits on the legal right of his had been person who suffered infraction of his personal legal right that can seek to remove the order of a tribunal on certiorari. The circumstance that the order might indirectly affect him does not cloths him with a locus standi a seek to quash the order of a tribunal .. ..
(at p. 298) (of Andh WR): (at pp. 118, 114 of AIR).... The grant of a permit to him to ply his bus on a particular route does not involve any guarantee of minimum profits. Our attention was not drawn to any provision of the Motor Vehicles Act or to any general principle of law which recognizes a right in an operator to rule out competition and to question the propriety of the grant of permits to others on the ground that his profits are likely to be reduced.
For these reasons, we hold that the respondent is not competent to challenge the correctness or the validity of the order of the State Transport Authority issuing permits to the two appellants.'
(14) In C.S.S. Motor Service v. State of Madras, : AIR1953Mad279 the question of the validity of certain provisions of the Motor Vehicles Act came up for consideration. Section 47(1) and Section 48(a) as they stood then read as follows:-
Section 48(1). A Regional Transport Authority shall, on deciding whether to grant or refuse a stage carriage permit having regard to the following matters, namely:-
(c) the adequacy of existing road passenger transport services between the places to be served, the fares charged by these services and the effect upon those services of the service proposed;
(d) .. .. ..
(e) the operation by the applicant of other transport services and in particular of un remunerative services in conjunction with remunerative services.
S. 48. A Regional Transport Authority may after consideration of the matters set forth is sub-section (1) of S. 47.
(a) limit the number of the stage carriages or stage carriages of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region; .. ..
(b) .. ..... ....
The learned Judges held that S. 48(a) mentioned above, which was subsequently made into S. 47(3) as it now stands, was valid that S. 47(1)(c) was wholly void and that S. 47(1)(c) was valid in part as mentioned below:-
(at p. 912):-
'........ With reference to Section 47(1)(c) adequacy of extension of service can be taken into account only in so far as it is in the interests of the public. The factor to be considered is not whether the existing operators will suffer by competition but whether extension of service will be in the interests of the public. Therefore, Section 47(1)(c) will not be legal in so far as it provides that the effect of the service proposed upon the existing service should be taken into account.'
(15) In Raman and Raman Ltd. v. State of Madras, : AIR1957Mad536 the validity of a G.O. dated 16-11-1956 passed by the Government of Madras in exercise of the powers vested in it by S. 43-A(2) of the Motor Vehicles Act ordering the Regional Transport Authority Tanjore 'to vary the existing route Tanjore to Kumbakonam as Tanjore to Koradacheri via Kumbakonam as Tanjore to Koradacheri via Kumbakonam and Kodavasal in respect of two buses was challenged. That order had been passed at a time when the Writ Petitioner's application for route Kodavasal to Koradacheri and for grant of a permit to him was pending. An application by the third respondent for variation of the condition of his permit of two buses to enable him to ply those two buses beyond Kumbakonam up to Koradacheri via Kodavasal had been rejected by the Regional Transport Authority. Permits already possessed by the third respondent enabled him to run those buses from Tanjore to Kumbakonam from which place the distance to Kodavasal was twelve miles. From Kodavasal to Koradacheri was a further distance of seven miles.
(16) Section 43-A (2), which was in force in Madras, runs as follows:-
'The State Government may, on a consideration of the matters set forth in sub-section (1) of Section 47, direct any Regional Transport Authority or the State Transport Authority to open any new route or to extend an existing route or to permit additional stage carriages to be put, or to reduce the number of stage carriages, on any specified route.'
There is no such provision in the Motor Vehicles Act as in force in Andhra Pradesh. It was held by Rajagopalan, J. to the following effect: (at p. 76, Head Note):-
'The direction under Section 43-A(2) being an administrative order was outside the purview of correction of a Writ of Certiorari. No writ of prohibition could issue to the Regional Transport Authority to provide for any anticipated breach of its lawful obligations arising out of the directions of the Government under Section 43-A(2). No writ of mandamus can issue to the Government since it has nothing further to do to give effect to the directions already issued. Where the statutory obligation imposed on the Regional Transport Authority by Section 43-A (2) is to give effect to the lawful directions of the Government a Writ of Mandamus cannot issue. A Writ of mandamus cannot also issue in anticipation of a refusal by the Regional Transport Authority to consider the objections.'
The Writ Petition was dismissed.
(17) In Southern Transports v. Kodaikanal Motor Union : AIR1960Mad365 , it was held that an order passed under S. 44(3)(c) of the Act directing variation of a route was an administrative act and could not be challenged by a petition for Certiorari under Article 226 of the Constitution. The learned Judges, following the decision in : AIR1957Mad536 observed as follows (at p. 397) (of Mad LJ): (at p. 366 of AIR):-
'An order passed by the Government under Section 43-A(2) and an order passed by the Transport Commissioner under Section 44 (3)(c) are similar in their nature. Following, with respect to the decision of the learned Judge in : AIR1957Mad536 , we hold that the order of the Transport Commissioner, being an administrative order, could not be challenged in a petition under Article 226 of the Constitution, either for certiorari or for prohibition. It is well-established that what cannot be done directly cannot be permitted to be done indirectly. If the appellant cannot get rid of the order of the Transport Commissioner directly by a Writ issued under Article 226, he cannot virtually obtain that relief indirectly by obtaining an order of prohibition, restraining the Regional Transport Authorities from dealing with the application for variation.'
(18) In Shivendra Bahadur v. Nalanda College, : (1962)ILLJ247SC , it was observed (at p. 1211)
'............... In order that mandamus may issue to compel the respondents to do something, it must be shown that the statutes impose a legal duty and the appellant has a legal right under the statutes to enforce its performance.'
(19) The learned Advocate for the Writ Petitioner relies on the following observations in Nadar Transports: State of Madras, : AIR1953Mad1 wherein the scope of S. 64 was considered: (at p. 364) (of Mad LJ): (at p. 3 of AIR):-
'Section 64, sub-sections (a) and (f) are intended, in our opinion, to apply to different situations. Sub-section (a) is confined only to cases where a person is aggrieved by the refusal of the Regional Transport Authority to grant a permit to him or is aggrieved by any condition attached to a permit granted to him. There may be a person who while applying for the grant of a permit for himself has also objected to the grant of a permit to the other. In such a case, if the permit is refused to him, he would fulfill the condition of both sub-sections (a) and (f). There may be a person who though he had not applied for a permit to himself, was a person who provided transport facilities and opposed the grant of a permit to another, and if the permit is granted to the other, notwithstanding that he did not apply for a permit he would be entitled to prefer an appeal against the order under sub-section (f), though he would not answer the description in sub-section (a) as a person aggrieved by the refusal of the Regional Transport Authority to grant a permit.
These observations, which are based on the express working of sub-sections (a) and (f) of Section 64, have no bearing on the point concerned in the present case as to whether the petitioner has a locus standi to file this Writ Petition against the G.O. concerned herein which is said to have been passed under S. 43-A of the Act.
(20) The learned Advocate for the petitioner relies on the decision of the Supreme Court in B. Rajagopala v. S.T.A. Tribunal, : 7SCR1 , in which a Government Order, which had been issued by the Government of Madras under Section 43-A of the Motor Vehicles Act prescribing a system of marks to be followed by the Transport Authorities, in dealing with application for permits was held to be invalid. But, in that case, the Writ Petitioner had filed an application for permit in response to Notification of the State Transport Authority. That decision does not help the petitioner in this case on the question as to whether he (Petitioner) has a locus standi to file this Writ Petition.
(21) In the result, I find as follows: S. 43-A has been considered by the High Courts and by the Supreme Court in various decisions and no observation was made doubting its validity or tending to throw doubt on its validity. It is not shown to me that there is any room to doubt its validity. I do not accept the contention urged in the Writ Petition that the Section is not valid.
(22) The Order (G.O.) so far as it opened a new route is an administrative order. The Petitioner has no locus standi to question the validity of the G.O. in that aspect. The order fixing the number of permits is an order which the Regional Transport Authority has a right to pass under Section 47(3). Even assuming for arguments' sake without admitting, that the Government did not act within its powers in fixing the number of permits by purporting to pass an order under S. 43-A, the petitioner has no locus standi to challenge that order by means of a Writ Petition and no Writ or direction can be issued as prayed for by him at this stage. An order fixing the number of permits to be granted on a route is an order which has to be passed at an earlier stage preceding the later stage in to which the Regional Transport Authority has to consider applications for grant of permits and to pass orders granting or refusing permits. At this earlier stage, the petitioner, as an operator plying buses on a portion of the new route, has no locus standi to apply for a Writ such as asked for in the present case. Therefore, no Writ or direction or order as prayed for can issue in favour of the petitioner.
(23) I dismiss the Writ Petition with costs. Advocate's Fee Rs. 100.
(24) Petition dismissed.