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Janata Motor Transport Co-operative Society Ltd. Vs. State Transport Appellate Authority and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 327 of 1963
Judge
Reported inAIR1965MP113
ActsMotor Vehicles Act, 1939 - Sections 44 and 44(1); Constitution of India - Articles 226 and 227
AppellantJanata Motor Transport Co-operative Society Ltd.
RespondentState Transport Appellate Authority and ors.
Appellant AdvocateR.K. Tankha, Adv.
Respondent AdvocateA.P. Sen and ;K.K. Adhikari, Advs. for Respondent No. 3
DispositionPetition dismissed
Cases ReferredPannalal Binjraj v. Union of India
Excerpt:
.....under a wrong provision if it can be shown to be within its powers under any other rule, and that the validity of an order should be judged on a consideration of its substance and not its form. 5. the objection that the notification is bad inasmuch as it does not say that shri mishra shall exercise the powers and functions conferred by or under chapter iv on the regional transport authority is altogether unsubstantial. 3's permit he had no authority to function as regional transport authority must, therefore, fail......held on 17th. 18th and 19th july, 1962. 3. on the question of the validity of the appointment of shri mishra as regional transport authority, raipur, and of his authority to function in that capacity, the argument of shri tankha, learned counsel appearing for the petitioner, was that during the material time shri mishra functioned as regional transport authority by virtue of notification no. 25/ii-a(2), dated the 2nd june, 1962, and that it was ruled by this court in sudarshavi transport services (private) ltd. v. s. t. a. authority, mp no. 376 of 1962, dated 16-2-1963 (mp), that this notification could not in any sense be regarded as one validly appointing shri mishra as the regional transport authority for bilaspur region under section 44 of the motor vehicles act, 1939 (hereinafter.....
Judgment:

Dixit, C.J.

1. By this application under Articles 226 and 227 of the Constitution, the petitioner seeks a writ of cartiorari for quashing an order of the Regional Transport Authority, Rajput rejecting its application for the grant of: a permit on Raipnr-Rajnandgaon route, and of the State Transport Appellate Authority upholding in appeal the decision of the Regional Transport Authority. While rejecting the petitioner's application, the Regional Transport Authority allowed the application of the respondent No. 3, Durg Transport Co., for the renewal of its permit in respect of the aforesaid route.

2. The two grounds on which the renewal in favour of the respondent No. 3 was assailed before the Appellate Authority, and which have been repeated before us, are that on 17th to 19th July, 1962 when the Regional Transport Authority took the decision to renew the permit in favour of the respondent No. 3, Shri J.P. Mishra, who was functioning as the Regional Transport Authority, Raipur, was not validly appointed as Regional Transport Authority for that region, and that the petitioner had no notice of the meetings of the Regional Transport Authority held on 17th. 18th and 19th July, 1962.

3. On the question of the validity of the appointment of Shri Mishra as Regional Transport Authority, Raipur, and of his authority to function in that capacity, the argument of Shri Tankha, learned counsel appearing for the petitioner, was that during the material time Shri Mishra functioned as Regional Transport Authority by virtue of Notification No. 25/II-A(2), dated the 2nd June, 1962, and that it was ruled by this Court in Sudarshavi Transport Services (Private) Ltd. v. S. T. A. Authority, MP No. 376 of 1962, dated 16-2-1963 (MP), that this notification could not in any sense be regarded as one validly appointing Shri Mishra as the Regional Transport Authority for Bilaspur region under Section 44 of the Motor Vehicles Act, 1939 (hereinafter called the Act). It was further said that the notification No. 24-2559/II-A(2), dated 31st May/1st June, 1962, which was published in the Gazette of 8th June, 1962, by which Shri Mishra was appointed as Regional Transport Authority for Jabalpur, Bilaspur, Rewa and Raipur. did not supersede the earlier notification, namely, No. 25/II-A(2), dated the 2nd June, 1962, and was not in conformity with Section 44 of the Act for the reasons that the notification made no mention of Section 44 and did not also say that Shri Mishra had been invested with the powers and functions of the Regional Transport Authority conferred by or under Chapter IV of the Act. In reply, Shri Sen, learned counsel appearing for the respondent No. 3, did not rely on the notification, dated 2nd June, 1962. He sought to support the validity of the appointment of Shri Mishra as Regional Transport Authority with reference to the notification published on 8th June, 1962, and said that even though it did not make a specific reference to Section 44 it must he taken as having been issued under that provision and was, therefore, a valid notification under Section 44, and that Section 44 did not require that a notification with regard to the appointment of a Regional Transport Authority should contain a specification as regards the exercise by the Authority of the powers and functions conferred by or under Chapter IV.

4. In our opinion, there is no substance in the contention advanced on behalf of the petitioner that the appointment of Shri Mishra as Regional Transport Authority, Raipur, was not valid. The validity of the appointment has to be judged on the basis of the notification issued on 8th June, 1962 and not with reference to the earlier notification of 2nd June, 1962 on which learned counsel for the respondent No. 3 did not rightly rely to support the validity of the appointment of Shri Mishra during the material period in view of the decision of this Court in MP No. 376 of 1962, dated 16-2-1963 (MP). That decision makes it clear that the notification of 2nd June did not require any supersession by the notification, dated 8th Tune. 1962 which ii in the following terms--

Jh ts- ih- feJk] vk,- ,- ,l- ftudh lck, lkekU;iz'kklu}kjk bl foHkkx dks lkSaih xbZ gSa vLFkkbZ :i ls vkxkeh vkns'krd dk;ZHkkjxzgu djus dh rkjh[k ls LFkkuki izknsf'kd ifjogu vf/kdkjh] tcyiwj] jhok]foykliwj vkSj jk;iwj {ks= ds fy;s fu;qDr fd;s tkrs gSaA**

Now, under Section 44(1) of the Act the State Government is empowered to constitute by notification in the official Gazette Regional Transport Authorities to exercise and discharge throughout such areas as may be specified in the notification, in respect of each Regional Transport Authority, the powers and functions conferred by or under Chapter IV on such Authorities. It is plain From Section 44(1) that for a valid appointment of any person as Regional Transport Authority, it is necessary that there should be a notification in the official Gazette, and the area in which the Authority is to function must be specified in the notification. The notification issued on 8th June, 1962 satisfies both these requirements. It was published in the Gazette on 8th June, 1962, and expressly says that the appointment of Shri Mishra as Regional Transport Authority is for Jabalpur, Rewa, Bilaspur and Raipur areas. True, it does not contain any words or expressions indicating that it was issued in the exercise of powers conferred by the State Government under Section 44(1). Such a mention would have been no doubt desirable and very prudent. But the omission in the notification to the section of the Act under which it was issued is not a defect invalidating the notification.

This follows from the principle that before a rule framed or a notification issued by an authority la declared ultra vires and invalid, the Court must be satisfied not only that the authority had no power to act under the provision under which it purported to act but also it had no power at all under any law to so act. In P. Balakotaiah v. Union of India, 1958 SCR 1052: AIR 1958 SC 232, the Supreme Court has said that no exception can he taken to the proposition that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule, and that the validity of an order should be Judged on a consideration of its substance and not Its form. The same principle applies in judging the validity of a notification made under an enactment. The decision of the Supreme Court was followed by a Full Bench of this Court In Premshankar v. Collector, East Nimar, 1962 MPLJ 703: (AIR 1963 Madh Pea 262) (FB). As Section 44(1) of the Act empowers the Government to make the appointment of a Regional Transport Authority by the issue of a notification, the notification in question cannot be struck down as invalid on the ground that it contains no reference to Section 44(1). That notification must be taken as having been issued by the Government in the exercise of its powers tinder Section 44(1) though it is not couched in a standard form in which generally notifications are issued.

5. The objection that the notification is bad inasmuch as it does not say that Shri Mishra shall exercise the powers and functions conferred by or under Chapter IV on the Regional Transport Authority is altogether unsubstantial. Section 44(1) says that the State Government shall constitute Regional Transport Authorities

'to exercise and discharge throughout such areas. . .as may be specified in the notification, in respect of each Regional Authority, the powers and functions conferred by or under this Chapter on such Authorities.'

It will be seen that under this provision the State Government to not competent to select only some of the powers and functions of Regional Transport Authority conferred by or under Chapter IV and invest a particular Regional Transport Authority with those powers and functions.

A Regional Transport Authority appointed under Section 44 exercises all the powers and functions conferred by or under Chapter IV within the area for which he has been appointed. That being so, the specification in the notification of the appointment of a Regional Transport Authority of the powers and functions the Authority is to exercise is wholly unnecessary. If the appointment of a Regional Transport Authority is otherwise valid, then that Authority automatically exercises all the powers and functions conferred by or under Chapter IV even if the notification does not say in so many words that the Authority is to exercise powers and functions conferred by or under Chapter IV. In our judgment, the notification, which was published on 8th June, 1962, was a valid notification with regard to the appointment of Shri Mishra as Regional Transport Authority, Raipur. The petitioner's objection that at the time when Shri Mishra made an order renewing the respondent No. 3's permit he had no authority to function as Regional Transport Authority must, therefore, fail.

6. In regard to the remaining contention of the petitioner that it had no notice of the meetings of the Regional Transport Authority held on 17th to 19th July, 1962, it has been found both by the Regional Transport Authority and the appellate Authority that the petitioner had notice of the meeting and that he actually received the notice on 14th July, 1962. The question whether the petitioner did or did not have any notice of the meeting is a question of fact which cannot be canvassed in proceedings under Articles 226 and 227 of the Constitution.

7. At the time of the hearing of this petition, learned counsel for the applicant sought leave for amendment of the petition by adding the ground that the decision of the Appellate Authority, presided over by Shri Mitra alone, was null and void and without jurisdiction inasmuch as under the relevant notification constituting the Appellate Authority that Authority consisted of two members.In our opinion, the petitioner cannot be allowed to raise this objection when it had not taken it before the Appellate Authority itself and even in this petition when it was filed. The facts on which the petitioner questions the jurisdiction of one member of the Appellate Authority to hear and dispose of appeals were within the knowledge of the petitioner when his appeal before the said Authority was taken up for hearing. Before that Authority the petitioner did not raise any objection and submitted itself to the jurisdiction of the Authority. The petitioner cannot now be permitted, when the decision of the Appellate Authority has gone against It, to question the jurisdiction of the Appellate Authority by invoking the special jurisdiction of this Court under Articles 226 and 227. This is clear from the decisions of this Court in Ambaram v. Gumansingh, AIR 1957 Madh Pra 58, Ramnarayan v. Sudama, LPA No. 3 of 1960, dated 5-8-1961: 1961 MPLJ (SN) 270, and of the Supreme Court in Pannalal Binjraj v. Union of India, 1957 SCR 233 at p. 268: (,(S) AIR 1957 SC 397 at p. 412).

8. For these reasons, this petition is dismissed with costs. Counsel's fee is fixed at Rs. 100. The outstanding amount of security deposit, if any after deduction of costs, shall be refunded to the petitioner.


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