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A. Vedachala Mudaliar Vs. the State of Madras Represented by the Secretary to Government, Home Department, Fort St. George, Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 171 of 1951
Judge
Reported inAIR1952Mad276; (1951)2MLJ411
ActsConstitution of India - Article 226; Motor Vehicles Act, 1939 - Sections 47(2), 64 and 64A; Code of Civil Procedure (CPC) , 1908 - Sections 115; Code of Criminal Procedure (CrPC) , 1898 - Sections 435
AppellantA. Vedachala Mudaliar
RespondentThe State of Madras Represented by the Secretary to Government, Home Department, Fort St. George, Ma
Appellant AdvocateS. Rangaswami Aiyangar and ;N. Subramania Iyer, Advs.
Respondent AdvocateAdv. General assisted by V.V. Raghavan, Adv. for Govt. Pleader and ;K. Bhashyan, Adv. for ;R. Rajeswara Rao, Adv.
Cases ReferredMotilal v. Utter Pradesh
Excerpt:
.....defeated. it does not 'ex facie' disclose why the government viewed that the order of the central traffic board is not proper and that ofthe regional transport authority is proper, learned counsel appearing for the respondents contended that the government are entitled under section 64a to set aside the order of inferior tribunals if it is illegal, irregular and improper and if they set aside the order on one or other of those grounds, there is no duty cast on them by the act or any provision of law to give reasons for their holding a particular order as bad for one or other of the aforesaid reasons. order would be good and unimpeachable. it necessarily follows that the order must 'ex facie' show that the government was satisfied that the order it was revising fulfilled any of the..........authority, the petitioner preferred an appeal to the central road traffic board and the central board traffic board by its order dated 30-8-1950 directed that the petitioner's bus should leave vanangupet at 7 a.m. and the 2nd respondent's bus at 8-5 a.m. that is they restored the previous timings. thereupon the 2nd respondent preferred a revision to the government at madras who set aside the order of the central road traffic board without giving any reasons for the same. the petitioner filed a writ of certiorari for quashing that order and the high court quashed that order on the ground that the order on the face of it did not disclose the defect which vitiated the order of the subordinate authority. the 2nd respondent moved the government on 5-5-1951 for revision of the central road.....
Judgment:
ORDER

Subba Rao, J.

1. This is an application for issuing a writ of 'certiorari' to quash the order of the Government of Madras dated 5-7-1951. The petitioner is the proprietor of Sri Gandhibam Bus Service, Chingleput. He was granted two stage carriage permits for running two buses on the route from Vanangupet to Madras. One of the two buses MDH. 1144 starts from Madras and the other from Vanangupet every morning at 7 a.m. The schedule of timings in respect of two buses was fixed some years ago and the said schedule has been in existence for over six years. The 2nd respondent is the owner of bus MDH. 1166 running between Vanangupet add Madurantakam as shuttle service with six singles. Timings for this bus also were fixed some years ago. He was starting his bus service at Vanangupet at 8-5 a.m. He moved the Regional Transport Authority, Chingleput for the revision of timings for his bus. The Regional Transport Authority by its order No. 2505/B-1/50 dated 21-7-1950 fixed the timings for his bus at 6-40 a.m. instead of 8-5 a.m. Against the decision of the Regional Transport Authority, the petitioner preferred an appeal to the Central Road Traffic Board and the Central Board Traffic Board by its order dated 30-8-1950 directed that the petitioner's bus should leave Vanangupet at 7 a.m. and the 2nd respondent's bus at 8-5 a.m. that is they restored the previous timings. Thereupon the 2nd respondent preferred a revision to the Government at Madras who set aside the order of the Central Road Traffic Board without giving any reasons for the same. The petitioner filed a writ of certiorari for quashing that order and the High Court quashed that order on the ground that the order on the face of it did not disclose the defect which vitiated the order of the subordinate authority. The 2nd respondent moved the Government on 5-5-1951 for revision of the Central Road Traffic Board's order. The Government passed the following order : 'The High Court quashed the G. O. on the ground that no reason was given in it for setting aside the Central Road Traffic Board's order. The High Court however made it deaf that by quashing the G.O. the order of the Central Road Traffic Board was not confirmed and that the Government were not pre-vented from passing fresh and valid orders if they thought fit.

The Government have accordingly examined fresh under Section 64-A of the Motor Vehicle Act, the legality, regularity and propriety of the Central Road Traffic Board's proceedings, R. No. 24538/A-2/50 dated 30-8-1950, with reference to the connected records and the representation of Sri A. Vedachala Mudaliar dated 6-6-1951. The Government consider that in the circumstances of the case, the order of the Regional Transport Authority, Chingleput passed at its meeting held on 21-7-1950 directing that the time of the departure from Vanangupet of bus MDH. 1166 owned by Sri M. Kali Mudaliar should be 6-40 a.m. is the proper one and that the order of the Central Road Traffic Board in upsetting the Regional Transport Authority's order to this extent is not proper. They therefore direct that the Central Road Traffic Board's order referred to above be set aside and the Regional Transport Authority's order be upheld'.

The present application is filed to quash that order, the main ground being that the statement of the Government that the order of the Central Road Traffic Board is not proper is not a compliance with law.

2. The learned Advocate General appearing for the Government and Mr. Bhashyam appearing for the 2nd respondent took the preliminary objection against the maintainability of the present application. They contended that the order of the Regional Transport Authority in fixing the timings is an administrative act and therefore the order of the Central Road Traffic Board made in appeal against that order and that of the Government passed in the exercise of their revisional jurisdiction are all administrative acts not liable to be quashed by a writ of 'certiorari'. At this stage, it will be convenient to notice some of the cases which lay down the limits of the High Court's jurisdiction in issuing writs. The leading case on the subject is 'Rex v. Electricity Commissioners', 1924 1 K.B. 171 ' where Atkin L. J. stated the law as follows;

'Whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercise-ed in these writs'.

Slesser L. J. in the King v. London County Council' (1931) 2 K.B. 215 gave the following four conditions before a Writ of 'Certiorari' would issue. At page 243 it is observed as follows :

'There remains only the question whether here the remedy which has been sought by the respondents is or is not an appropriate remedy, that is, the remedy of certiorari. Atkin L. J. (as he then was) in 'Rex v. Electricity Commissioners' (1942) 1 K. B. 171 lays down four conditions under which a rule for a certiorari may issue. He says 'wherever any body of persons' (first) 'having legal authority' (secondly) 'to determine questions affecting the rights of subjects and thirdly having the duty to act judicially' (fourthly) 'act in excess of their legal authority' the sub-divisions are my own--'they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs'.

The same principle was accepted and applied by the Supreme Court of India in 'Province of Bombay v. Khushaldas S. Advani', 1950 S.C.J. 451. The question in that case was whether a writ of certiorari was available to an aggrieved party to remove or quash an order made by the Government of Bombay requisitioning certain premises under Section 3 of the Bombay Land Requisition Ordinance V of 1947. The Supreme Court applied the principle laid down by Atkin L.J. and held, having regard to the facts of that particular case that the order sought to be quashed therein was only of an administrative nature. At page 459 the learned Chief Justice says :

'It seems to me that the true position is that when the law, under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi judicial. Prescribed forms of procedure are not necessary to make an enquiry judicial provided in coming to a decision well recognised principles of approach are required to be followed. In my opinion, the conditions laid down by Slesser L.J. in the judgment correctly bring out the distinction between a judicial and quasi judicial decision on the one hand and the administrative decision on the other'.

The next decision relied on by the learned Advocate General in 'Franklin v. Minister of Town and Country Planning' (1948) A C 87 does not carry the discussion any further for it applies only the aforesaid principles to the facts of that particular case.

3 Bearing the aforesaid principles in mind I shall proceed to consider whether the act of the Regional Transport Authority in modifying the time-table is a quasi judicial act or an administrative act. To put it in other words whether the said order satisfied the conditions laid down by Slesser L.J. The powers and duties of the Regional Transport Authority and the character of the disposal of the proceedings of that authority can only be gathered by a scrutiny of the provisions of the Motor Vehicles Act, 1939, which will be referred to hereinafter as the Act. Under Section 44 of the Act, the Provincial Government is empowered to constitute :

'For the province a Provincial Transport Authority to exercise and discharge the powers and functions specified in Sub-section (3), and shall in like manner constitute Regional Transport Authorities to exercise and discharge throughout such area (in this chapter referred to as regions) as may be specified in the notification in respect of each Regional Transport Authority, the powers and functions conferred by or under this Chapter on such authorities'.

Section 45 lays down that 'every application for a permit shall be made to the Regional Transport Authority of the region or of one of the regions in which it is proposed to use the vehicle'. Section 46 prescribes the form of such an application and the particulars to be contained therein. The application shall contain (a) the type and seating capacity of the vehicle in respect of which the application is made, (b) the route or routes on which or the area within which it is intended to use the vehicle, (c) the time table if any, of the service to be provided and (d) such other matters as may be prescribed. Under Section 47 the Regional Transport Authority shall in deciding whether to grant or refuse a stage carriage permit have regard to the matters described therein. Under Section 47 (2)

'A Regional Transport Authority shall refuse to grant a stage carriage permit, if it appears from any time table furnished that the provisions of the Act relating to the speed at which vehicles may be driven are likely to be contravened'.

The proviso to that sub-section lays an obligation on the Regional Transport Authority to give an opportunity to the applicant for amending the time table so as to conform to the said provisions. Section 47 also prescribes that the Regional Transport Authority shall take into consideration any representations made by persons already providing road transport facilities along or near the proposed route or routes or by any local authority or police authority within whose jurisdiction any part of the proposed route or routes lies or by any association interested in the provision of road transport facilities. After hearing the 'representations so made and after taking into consideration the matters prescribed under Section 47 the Regional Transport Authority may make appropriate orders mentioned in Section 48. The relevant provisions of Section 48 are :

A Regional Transport Authority may, after consideration of the matters set fourth in sub- Section (1) of Section 47 : (a) limit the number of 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) issue a stage permit in respect of a particular stage carriage or a particular service of stage carriages; (c) regulate timings of arrival or departure of stage carriages whether they belong to a single or more owners ; (d) attach to a stage carriage permit any prescribed condition or any one or more of the following conditions, namely : (i).....(ii)... (iii) that copies of the fare table and time table shall be exhibited on the stage carriage and that the fare table and time table so exhibited shall be observed.

Section 48-A says :

'Any conditions attached to a stage carriage permit in pursuance of clause (d) of Section 48 may, at any time be varied, cancelled or added to by the Provincial Authority, provided that this power shall not be exercised to the prejudice of the holder of the permit without giving not less than three months' notice to him'.

Section 57 prescribes the procedure in applyingfor and granting of permits. Section 57 (3) says :

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

Under Section 57 (4) :

'no representation in connection with an application referred to in Sub-section (3) shall be considered by the Regional Transport Authorityunless it is made in writing before the appointed date and unless a copy thereof is fur-nished simultaneously to the applicant by the person making such representation''.

Under Section 57, Sub-section (6), in the circumstances mentioned therein the Regional Transport Authority is also empowered to take any steps as it considers appropriate for the hearing of the representation in the presence of any per-sons likely to be affected thereby. Section 64 gives a right of appeal against the orders of the Regional Transport Authority to the prescribed authority. The prescribed authority is the Central Road Traffic Board. Section 64 (b) enacts that any person 'aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof' may prefer an appeal to the prescribed authority. Under Section 64-A.

'the Provincial Government may of its own motion or on application made to it. call for the records of any order passed or proceeding taken under the Chapter by any authority or officer subordinate to it, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding and after examining such records, may pass such order in reference thereto as it thinks fit'.

In the exercise of the rule making powers conferred upon the Provincial Government His Excellency the Governor of Madras made the rules. Under Rule 269 the transport authority may from time to time (i) by a general order, prescribe a schedule of timings for stage carriages running on specified routes or by (ii) a special order prescribe a schedule of timings for each stage carriage. Under Rule 147 :

'from every original order of the Road Traffic Board, an appeal shall He to the Central Board within thirty days of the date of receipt of such order by the person aggrieved'.

4. It will be seen from the aforesaid provisions that the Regional Transport Authority has the legal authority to determine the questions affecting the rights of subjects. Though superficially it may appear that the powers of the Regional Transport Authority are confined only to issuing permits for plying buses they really affect substantially the rights of parties. An illegal refusal of a permit or permits to a person who is running buses on a particular route may completely ruin his business and reduce the erstwhile prosperous business man to an impoverished condition. Likewise new permits issued to an applicant may completely change his financial status. Having regard to the soaring prices of the cars and buses and the thriving business the bus owners are carrying on, one can imagine the effect of the orders of the Regional Transport Authority in regard to the fortunes of this class of people. It may also be mentioned that a mere change of the timings or the route or rate of fare may also affect the rights of the parties very appreciably and sometimes such changes may transform a flourishing permit-holder into a chronic debtor. It cannot, therefore, be disputed that the Regional Transport Authority is empowered to determine the questions affecting the rights of subjects. Having regard to the effect of such orders on the rights of parties the Legislature designedly introduced provisions in the Act to compel them to act Judicially. The proceedings start with an application to the Regional Transport Authority containing particulars. Section 57 (3) provides a machinery by which the Authority should notify finally all such applications and call for representations from the person interested. Under Section 47 (1) the Regional TransportAuthority has to hear the representations made By the persons interested and also such of the representations made by the police, local authority or by any association. The Regional Transport Authority, makes an order under Section 48 after hearing all the parties concerned. It is manifest that, the procedure prescribed is certainly a judicial one. A Full Bench of the Allahabad High Court in 'Motilal v. Utter Pradesh', : AIR1951All257 held after considering the various provisions of the Act that the Regional Transport Authority is a quasi judicial body. Indeed neither the learned Advocate General nor Mr. Bhashyam denied the fact that the Regional Transport Authority or the Central Road Traffic Board in issuing permits or refusing them were performing quasi judicial functions. But they' contended that the Regional Transport Authority or other tribunals in the heirarchy are not exercising the function as quasi judicial bodies in regulating timings in respect of the buses. They argued that the said authority in fixing the timings or modifying them later .on is only performing an administrative act. I regret my inability to agree with their contentions. I have already pointed out that the change of timings though superficially appear to be innocuous may lead to the results which may affect the parties financially to a substantial degree. There cannot therefore be any distinction in principle why the Legislature should have made a distinction in regard to the character of the enquiry between the issue of a permit and the change of timings. Indeed one of the important particulars to be mentioned in the application is the time table if any of the service to be provided. When that application containing that particular is given notice of to the persons interested or other authorities mentioned in S, 47 they are entitled to make their representations in respect of that time table. Section 47 (2) empowers the Regional Transport Authority to reject a permit if it is satisfied that the time table furnished may affect the speed limit prescribed by the provisions of the Act. But before it could do so it has to give an opportunity to the applicant to amend the time table. After hearing the representations made and considering the matters contained in Section 47, the Regional Transport Authority 'can regulate the timings under Section 48. It could also make it a condition to the permit issued to any person that the time table should be exhibited on his bus and its terms observed. Presumably in this case the observation of the time table must have been made a condition of the permit. If fixing the time table in the first instance could be made only by adopting judicial procedure, it is unreasonable to hold that under Rule 269 the Regional Transport Authority could modify the time table in an administrative capacity for if that be so the safeguards provided by the Legislature would be defeated. Mr. Bhashyam made an attempt to make a distinction between the orders under Section 48 (a) (b) and (c) and the orders under Section 48 (d). I cannot appreciate the distinction for those orders under whatever clause they are made only after the necessary judicial enquiry provided in Section 47. He also relied upon Section 64 and contended that a third party cannot file an appeal against the variation of a condition and therefore the sub-section gives a clue that the order varying the condition is not a judicial order. But to my mind the terms of that sectionare wide enough to confer a right of appeal even on third parties if the variation of a condition in the permit issued to another affects his rights. Section 64 reads :

'Any person (a) aggrieved by the refusal of 'the Provincial or a Regional Transport Authority to grant a permit or by any condition attached to a permit granted to him.....

Under Section 64 (b) any person aggrieved by any variation of the conditions of a permit can prefer an appeal from the order of the Regional Transport Authority. The petitioner is certinly aggrieved by the variation of the condition as by the change of the timings his financial interests would suffer. But it is stated that I must read the words 'the permit' along with the words 'a permit granted to him' found in clause (a) and if so read any person can only be the person the conditions of whose permit have been varied. Though this argument has some force, I am inclined to hold that Section 64 (b) is not copfined to the permit holder the conditions of whose permit have been varied but to any person who is affected by the variation of the conditions in the permit issued to another. The rules under the Motor Vehicles Act were also framed on that basis. I therefoore hold that the Regional Transport Authority is acting judicially when it ,varles the conditions of B permit by fixing new timings. If so the Central Road Traffic Board and the Government are also functioning judicially in fixing the timings.

5. The next question is whether the order of the Government is liable to be quashed. The first order of the Government dated 12-12-1950 reads as follows :

'The Government uphold the decision taken by the Regional Transport Authority, Chingle-put at its meeting held on 21st July 1950 ordering that the time of departure from Vanangupet to Bus MDH 1166 owned by Sri M. Kali Mudaliar should be at 6-40 a.m. To this extent the Central Road Traffic Board's order No. R. 24538/A. 2/50 dated 30th August 1950 is hereby set aside'.

The present order of the Government after narrating the circumstances under which the High Court set aside that order says :

'The Government have accordingly examined afresh under Section 64-A of the Motor Vehicles Act the legality, regularity and propriety of the Central Road Traffic Board's proceedings R. No. 24358/A2/50 dated 30-8-1950 with reference to the connected records and the representation of Sri A. Vedachala Mudaliar, dated 6-6-1951. The Government consider that hi the circumstances of the case, the order of the Regional Transport Authority, Chingleput passed at its meeting held on 21-7-1950, directing that the time of the departure from Vanangupet of Bus MDH. 1166 owned by Sri M. Kali Mudaliar should be 6-40 a.m. is the proper one and that the order of the General Road Traffic Board in upsetting the Regional Transport Authority's order to this extent is not proper. They therefore direct that the Central Road Traffic Board's order referred to above be set aside and the Regional Transport Authority's order be upheld'.

A comparison of the two orders shows that the Government only added the words found in Section 64A to its previous order. It is only a formal and technical observance of the provisions of the section. It does not 'ex facie' disclose why the Government viewed that the order of the Central Traffic Board is not proper and that ofthe Regional Transport Authority is proper, learned counsel appearing for the respondents contended that the Government are entitled under Section 64A to set aside the order of inferior tribunals if it is illegal, irregular and improper and if they set aside the order on one or other of those grounds, there is no duty cast on them by the Act or any provision of law to give reasons for their holding a particular order as bad for one or other of the aforesaid reasons. To put it in other words, if the Government set aside the order of the Central Road Traffic Board simply stating that it is improper or illegal or irregular, the. order would be good and unimpeachable. They relied upon the judgment of a Bench of this Court consisting of Govinda Menon and Chandra Reddi JJ. in 'C.M.P. No. 625 of 1951' in support of their contention. The learned Judges in that case quashed the order of the Government on the ground that the order 'ex facie' did not show why they were setting aside that order- of the inferior subordinate tribunal. One of the learned Judges says :

'It is to the satisfaction of the Government as to one of the three matters mentioned in Section 64 (A) that is the foundation of its jurisdiction and the Government cannot go beyond the three categories in S, 64-A in_ revising the order of a subordinate authority. It necessarily follows that the order must 'ex facie' show that the Government was satisfied that the order it was revising fulfilled any of the conditions contemplated in Section 64-A. Other-wise it is not sufficient compliance with the provisions of the Act. The absence of such a recital would, in my opinion, render the Government's order irregular and the order has to be quashed'.

Though they set aside the order on the aforesaid ground they made observations in the course of that judgment which certainly help the contentions of the respondents but these observations are only in the nature of obiter, for the learned Judges decided the case on the other point namely that the order in question did not disclose 'ex facie' either of the three heads under which the Government are empowered to interfere with the orders of the subordinate tribunals. Another Bench consisting of the Chief Justice and Somasundaram J. who set aside the previous order of the Government in 'C.M.P. No. 13610 of 1950, 1942/51, 1954/51 and 1865 of 1951' observe in their judgment as follows :

'We have quashed them (the orders) because they do not show on their face why the orders were passed and because they failed to show any ground which would sustain the validity of the interference, having regard to the conditions laid down in Section 64-A of the Act'.

The learned Judges did not consider the question namely whether the Government should also give reasons why in their view the order of a subordinate tribunal is illegal, irregular and improper. The order of the Government in my view is only a formal and technical observance of the provisions of the section. Where an Act empowers a tribunal to act judicially in passing orders affecting the rights of parties, it is the elementary duty of the tribunal to give reasons for its orders, reasons which would show that the tribunal has applied its mind. In my experience I have not come across a single case where a Judge in the exercise of his revi-sional jurisdiction set aside an order of a sub-rodinate tribunal without giving reasons. TheLegislature who must be presumed to know the scope and the exercise of revisional jurisdiction by Courts designedly conferred a similar power on the Government. A comparison of the provisions of Section 115, C. P. C., and Section 435, Cri. P. C. with that of Section 64-A of the Act indicates that the Legislature did not Intend to make a departure in the manner of the exercise of jurisdiction. The conception of exercise of revisional jurisdiction and the limits laid down for such exercise in Section 64-A are indicative of nature and scope of the Government's jurisdiction. When the policy of the Legislature is to confer powers on administrative tribunals with a duty to discharge their functions judicially I do not see any reason why they should be exempted from all those safeguards inherent in its exercise ol that jurisdiction. It is true that the Legislature may specifically exempt a particular tribunal from following the well recognised principles of judicial disposal of cases, but so long as the Act does not exempt them and does not provide an alternative procedure, there is no reason to attribute to the Legislature an intention that in conferring revisional jurisdiction on Government they intended them to use the same in a manner inconsistent with the well established practice of judicial tribunals. From the stand point of fair name of the tribunals and also in the interests of the public, they should be expected to give reasons when they set aside an order of an inferior tribunal. If tribunals could set aside the considered orders of subordinate tribunals without any reasons such a power may in the hands of unscrupulous and dishonest persons,--I do not say that there are any such people in the tribunals we are now concerned with --turn out to be a potent weapon for corruption, manipulation and jobbery. Further if reasons for an order are given, there will be less scope for arbitrary or partial exercise of powers and the order 'ex facie' will indicate whether extraneous circumstances were taken into consideration by the tribunal in passing the order. The public should not be deprived of this only safeguard, unless the Legislature expressed otherwise. I would therefore hold that the order of a tribunal exercising judicial functions should 'ex facie' show reasons in a succinct form for setting aside the orders of the subordinate tribunals. To say that an order is illegal or improper or irregular is a mechanical repetition of the words in Section 64-A and is not a judicial disposal of a revision petition.

6. In the present case the latest order of the Government is only a mechanical repetition of the words in Section 64-A of the Act. It is not a judicial determination of the conditions laid down in Section 64-A which entitles them to interfere with the order of the subordinate authorities. I have therefore no alternative but to quash the order of the Government. The respondents will pay costs of the petitioner. One set advocate's fee Rs. 100.


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