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Raman and Raman (Private) Ltd., Kumbakonam Vs. the State of Madras, Represented by the Secretary, Home Dept., Fort St. George, Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 18 of 1957
Judge
Reported inAIR1957Mad536
ActsMotor Vehicles Act, 1939 - Sections 43A(2), 47(1) and 48; Constitution of India - Article 226
AppellantRaman and Raman (Private) Ltd., Kumbakonam
RespondentThe State of Madras, Represented by the Secretary, Home Dept., Fort St. George, Madras and ors.
Appellant AdvocateM.K. Nambiar and ;M. Natesan, Advs.
Respondent AdvocateM.M. Ismail, Adv. for ;Special Govt. Pleader, ;G.R. Jagadisan and ;A.R. Ramanathan, Advs.
DispositionPetition dismissed
Excerpt:
motor vehicles act (iv of 1939), section 43-a (2)--powers of government and regional transport authority--whether writ of mandamus could be issued in anticipation of refusal to consider objections ; under section 43-a (2) of the motor vehicles act (iv of 1939) the state government could direct a regional transport authority (1) to open a new route, (2) to extend an existing route, (3) to permit additional stage carriages to be put on any specified route and (4) to reduce the number of such carriages on any specified route. once a direction is given by the government on any of these points, it is for the concerned statutory authority, normally the regional transport authoirty, to give effect to those directions in accordance with the provisions of the act and the rules framed thereunder...........have apparently not yet terminated.3. in january 1956 the third respondent applied to the regional transport authority, tanjore, for the grant of a variation of the conditions of the permits of two of his buses, mdo 1081 and mdo 1100, to enable him to ply those two buses beyond kumbakonam up to koradacheri (via) kodavasal. the petitioner lodged his objections. the third respondent's application was rejected by the regional transport authority on 26-7-1956. the third respondent moved the state appellate tribunal to exercise the revisional jurisdiction conferred upon it by section 64 (2) of the motor vehicles act and to grant him the variation he had asked for. those proceedings would appear to be still pending final disposal by the tribunal.4. during the pendency of the.....
Judgment:
1. The third respondent had permits to ply eleven buses and the Sri Rama Vilas Service Ltd., permits for six buses on the Tanjore-Kumbakonam route, a distance of about 25 miles. The petitioner held permits to ply ten buses on the Kumbakonam-Kodavasal route, a distance of 12 miles. The Sri Rama Vilas Service Ltd., had permits for four buses on that route. Koradachery was seven miles further away from Kodavasal. Up to 1943 the petitioner plied buses on that route, but thereafter Kodavasal-Koradacheri was not treated as a separate route by itself.

2. The petitioner applied in 1955 for the sanction of a route Kodavasal to Koradacheri and for the grant of a permit to him. The third respondent intervened and objected to that proposal. These proceedings have apparently not yet terminated.

3. In January 1956 the third respondent applied to the Regional Transport Authority, Tanjore, for the grant of a variation of the conditions of the permits of two of his buses, MDO 1081 and MDO 1100, to enable him to ply those two buses beyond Kumbakonam up to Koradacheri (via) Kodavasal. The petitioner lodged his objections. The third respondent's application was rejected by the Regional Transport Authority on 26-7-1956. The third respondent moved the State Appellate Tribunal to exercise the revisional jurisdiction conferred upon it by Section 64 (2) of the Motor Vehicles Act and to grant him the variation he had asked for. Those proceedings would appear to be still pending final disposal by the Tribunal.

4. During the pendency of the proceedings before the Regional Transport Authority with reference to the grant of the variations asked for by the third respondent, written representations were made to the Government in July 1956 by two of the members of the Legislative Assembly, Sri Varadan and Sri, Thiagaraj'a Pillai, that it was desirable to extend the existing route Tanjore to Kumbakonam up to Koradachery to provide facilities for through traffic from Tanjore to Koradacheri.

On 6-8-1956 the third respondent lodged an application with the Government, in effect asking for variation of the conditions of the permit for two buses, and he specified the buses as MDO 1081 and MDO 1100. There was no specific reference to any operator in the representations made by Sri Varadan, M. L. A., and Sri Thyagaraja Pillai, M. L. A. By 6-8-1956, it should be remembered, the application that the third respondent had preferred to the Regional Transport Authority for grant of the variation of the conditions of the permits for the two buses, MDO 1081 and MDO 1100, had been rejected by the Regional Transport Authority.

But no reference to this was made by the third respondent in his petition to the Government. However, the facts, that the Regional Transport Authority had rejected the third respondent's application and that revisional proceedings were pending before the Appellate Tribunal, were brought to the notice of the Government by the Deputy Transport Commissioner in the report that he submitted to the Government on the representations made by the two M. L. As. and by the third respondent.

5. In G. O. 3199 Home, dated 16th November 1956, the Government, in exercise of the powers vested in it by Section 43-A (2) of the Motor Vehicles Act, ordered the Regional Transport Authority, Tanjore "to vary the existing route Tanjore to Kumbakonam as Tanjore to Koradacheri (via) Kumbakonam and Kodavasal in respect of two buses?

6. The petitioner applied under Article 226 of the Constitution. The specific relief asked for was the issue of a

"writ of mandamus or any other appropriate writ, order or direction directing respondents 1 and 2, the State of Madras and the Regional Transport Authority, Tanjore, respectively, to forbear from enforcing G. O. Ms. No. 3199 Home dated 16-11-1956."

7. The third respondent followed up the issue of G. O. No. 3199 by presenting an application on 19-11-1956 to the Regional Transport Authority to grant him a variation of the conditions of the permits for two other buses, MDO 1959 and MDO 1960. That application was notified by the Regional Transport Authority on 19-2-1957 under Section 57 (3) of the Act. The petitioner lodged his objections. Those proceedings are still pending. The real relief the petitioner would appear to seek at this stage is to bar the grant of the variations asked for by the third respondent subsequent to the issue of G. O. 3199 dated 16-11-1956.

8. The learned counsel for the petitioner attacked the validity of G. O. 3199 on the following grounds : (1) the Government in effect granted the third respondent a variation of the conditions of permits of two of his buses MDO 1081 and MDO 1100, which they had no jurisdiction at all to grant; (2) Section 43-A (2) did not confer any jurisdiction on the Government to restrict an extension of an existing route to a specified number of vehicles, in this case two buses: (sic) Section 43-A (2) did not confer a jurisdiction on the Government to extend an existing route to include within it as a sector any other existing route; -- in this case it should be remembered, Kumbakonam to Kodavasal was a separate route by itself, and if the extension of the route Tanjore to Koradacheri ordered by G. O. 3199 takes effect, Kumbakonam to Kodavasal would be a part of that extended route; (4) even if the Government had jurisdiction to issue the orders it did in G. O. 3199, exercise of that jurisdiction was vitiated by the failure to give notice to the petitioner or to allow him an opportunity to make his representations to the Government.

9. The first of these contentions is comparatively easy of disposal. No doubt G. O. 3199 purported to restrict the use of the extended route up to Koradachery to two-buses. Which of the two buses of the seventeen, including the eleven belonging to the third respondent, that ran on the route Tanjore to Kumbakonam should be permitted to ply up to Koradachery, the Government did not purport to decide. No doubt the third respondent in his representations to the Government specifically asked for permission to take two of his buses MDO 1081 and MDO 1100 up to Koradachery.

Sut that request was not granted by the Government either in form or in substance in G. O. 3199. I am therefore unable to accept the contention of the learned counsel for the petitioner that in substance G. O. 3199 granted the third respondent a variation of the conditions of the permits for two of his buses, MDO 1081 and MDO 1100. Therefore, the further question, whether a grant of such variation was within the jurisdiction of the Government, does not really arise for consideration, though it must be stated that no attempt was made by the learned counsel for the respondents to contend that the grant of a variation of the conditions of a permit as such was within the scope of Section 43-A (2) of the Act.

10. Section 43-A (2) runs:

"The State Government may, by 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."

Section 47 (1) which was specifically referred to in Section 43-A (2) runs :

"47. (1) A Regional Transport Authority shall, in deciding whether to grant or refuse a stage carriage permit, have regard to the following matters, namely:

(a) the interest of the public generally;

(b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken;

(c) the adequacy of existing road passenger transport services between the places to be served, the fares charged by those services and the effect upon those services of the service proposed;

(d) the benefit to any particular locality or localities likely to be afforded by the service;

(e) the operation by the applicant of other transport services and in particular of unremunerative services .........and

(f) the condition of the roads included in the proposed route or roads;

and shall also 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 lie or by any association interested in the provision of road transport facilities."

11. With reference to the third of the contentions of the learned counsel for the petitioner, which I have set out above, I am unable to see anything in the language of Section 43-A (2) to limit the jurisdiction of the Government in the manner suggested by the petitioner, that an extended route cannot include within it any existing sanctioned route. Section 43-A (2) authorises an extension of an existing route without any further limitations on that power. That Kumbakonam to Kodavasal was one of the existing routes did not prevent the Government from extending one of the existing routes Tanjore to Kumbakonam up to Koradachery beyond Kodavasal.

12. The contention of the learned counsel for the petitioner that Section 43-A (2) did not empower the Government to restrict the number of buses to ply on the extended route and to make that restriction an integral part of the order sanctioning an extension of route is, in my opinion, well founded.

13. Under Section 43-A (2) the State Government could direct a Regional Transport Authority (1) to open a new route, (2) to extend an existing routes (3) to permit additional stage carriages to be put on any specified route, and (4) to reduce the number of such carriages on any specified route. Once a direction is given by the Government on any of these points, it is for the concerned statutory authority, normally the Regional Transport Authority, to give effect to these directions in accordance with the provisions of the Act and the rules framed thereunder.

The Regional Transport Authority could itself sanction a new route after consideration of the factors listed under Section 47 (1) of the Act. If a direction to open a new route is given by the Government under Section 43-A (2) of the Act, to that extent the Regional Transport Authority is relieved of its duty to consider whether sanction should be accorded for the new route. After the route is sanctioned, the question how many buses should be permitted to ply on that new route will have to be determined under Section 48 (a) of the Act, and the statutory authority which has jurisdiction to determine that is the Regional Transport Authority.

After that question is settled, it is for the Regional Transport Authority to issue the required notifications under Section 57 of the Act and finally to select from among the applicants the operator to whom the permit of permits should be granted. All that the Government could do under Section 43-A (2) is to sanction a new route. The other steps to give effect to that direction will have to be left to the Regional Transport Authority.

Similarly, when the Government orders extension of an existing route under Section 43-A (2), the implementation of that sanction or direction has to be left to the Regional Transport Authority, to be effected in accordance with the provisions of the Act and the rules framed thereunder. In the present case the existing route was Tanjore to Kumbakonam. That was extended up to Koradachery. Seventeen buses had already been permitted to ply between Tanjore and Kumbakonam.

The question whether under Section 48 (a) the Regional Transport Authority could select one or more of the buses to ply up to Koradachery, once the route itself is extended, does not arise for consideration in these proceedings. What does arise is, who should order a variation of the conditions of the permits held by the operators to enable them to ply one or more of their buses up to Koradachery. The authority competent to grant the variation, should it be asked for, is the Regional Transport Authority. That jurisdiction is not conferred on the Government by Section 43-A (2).

To illustrate my point further, the Government has jurisdiction to order an extension of an existing route. The Government itself could not compel an operator on the existing route to apply for a variation of the conditions of the existing permits. Nor has the Government jurisdiction, should such an application be made, to grant the variation. The directions given under Section 43-A (2) has to be followed up by the Regional Transport Authority, if the direction was addressed to it.

14. I have endeavoured to explain that the jurisdiction conferred by Section 43-A (2) on the Government to extend an existing route does not include within it a power to limit at that stage the number of stage carriages that could be permitted to ply on the extended route. No doubt under Section 43-A (2) the Government has also power to permit additional buses to be put on a specified route or to reduce the number of buses on a specified route.

Neither of these would cover the direction in G. O. No. 3199 that only two buses should be permitted to ply on the extended portion of the route Kumbakonam to Koradacheri. It was not a case of permitting additional buses on a specified route. The route before extension, was Tanjore to Kumbakonam. The learned counsel for the petitioner was right when he submitted that the Government exceed the jurisdiction conferred upon it by Section 43-A (2) when it purported to limit the use of a portion of the extended route Kumbakonam to Koradacheri to two buses.

15. The learned counsel for the third respondent urged that the power so to limit the number of buses that could ply in this case between Kumbakonam and Koradacheri was ancillary or incidental to the power conferred by Section 43-A (2) to extend the existing route I am unable to accept that contention. As I have already pointed out, the Act specifically provides for the exercise of powers by statutory authorities at various stages. Whether a new route is sanctioned or whether an existing route is extended, which is the statutory authority to take further steps has to be decided with reference to the other provisions of the Act. Section 43-A (2) did not provide for these further steps or clothe the Government with authority to take them.

16. The further submission of the learned counsel for the third respondent was that G. O. 3199 should he treated as containing two directions (1) to extend the existing route Tanjore to Kumbakonam up to Koradachery, and (2) to limit the number of buses that should ply on the extended portion of the route to two, and the learned counsel urged that, even if the second direction was not within the scope of the jurisdiction conferred on the Government by Section 43-A (2), that left unaffected the validity of the first direction to extend the route up to Koradachery. I am unable to accept this interpretation of G. O. 3199. In effect it extended the route only for two buses. If the limitation on the number of buses to ply was beyond the jurisdiction of the Government it is the entire order that would appear to be vitiated.

17. The next point for consideration is, whether the exercise of the jurisdiction which the Government had to extend the existing route Tanjore to Kumbakonam up to Koradachery was vitiated by failure to give the petitioner an opportunity to make his representations to the Government. The Government, it should be remembered, purported to exercise that jurisdiction on the basis of the representations made to it by the third respondent and by two members of the Legislative Assembly.

18. The learned counsel for the petitioner pointed out that the provisions of Section 47 (1) were specifically referred to in Section 43-A (2), and he urged, that made it obligatory in this case to give the petitioner, a transport concern, operating over a portion of the proposed route, a reasonable opportunity to make his representations against the proposal to extend the route. Alternatively, the learned counsel urged that even if there was no statutory obligation to give such an opportunity to the petitioner, in the circumstances of this case, principles of natural justice were violated by the Government by its failure to issue notice to the petitioner. The order which adversely affected his interests was passed without notice to him.

19. The alternative contention is, in my opinion, well founded. The third respondent, it should be remembered, first applied to the Regional Transport authority for variation of the conditions of the permits for two buses MDO 1081 and MDO 1100. That application was rejected, but the order of rejection had not become final as proceedings in revision were still pending before the State Transport Appellate Tribunal.

Specific reference was made to these buses in the representation made by the third respondent to the Government, without the third respondent himself disclosing the pendency of the proceedings with reference to these two buses before the statutory authority. But, I have pointed out earlier, the pendency of these proceedings was specifically brought to the notice of the Government in the report of the Deputy Commissioner. The Government were thus made aware that there were objections to the proposal to extend the route from Kumbakonam to Koradacheri.

Principles of natural justice did, in the circumstances of this case, require the Government to give an opportunity to the petitioner, who had all along objected to the extension of the route sought by the third respondent to make his representations to the Government before it exercised its jurisdiction under Section 43-A (2) to extend the existing route. The effect of the failure of the Government to give the petitioner that opportunity has to be viewed against the background of the circumstances to which I have adverted. The failure of the Government to give an opportunity to the petitioner to make his representations vitiated the exercise of the jurisdiction the Government had to extend the route up to Koradacheri.

20. In the view I have taken it may not be necessary to investigate the other contention of the learned counsel for the petitioner, that independently of any principles of natural justice the Government were bound by the terms of Section 43-A (2) read with Section 47 (1) of the Act to give notice to the petitioner as one of the persons already providing road transport facilities along or near the proposed route within the meaning of Section 47 (1).

It is true that Section 47 (1) does require the statutory authority to take into consideration any representations made, among others by persons already providing road transport facilities along or near the proposed route. That that statutory obligation carries with it a further implied obligation to give notice to such bus operators was the contention of the learned counsel for the petitioner, which I am not now inclined to accept. It is not however necessary to express any concluded opinion of mine on that point in these proceedings.

21. The next question is, whether, despite the findings I have recorded above, no relief should be granted to the petitioner on his application under Article 226 of the Constitution. The relief the petitioner asked for was a 'writ of mandamus or any other appropriate writ, order or direction.'

22. The learned counsel for the respondents were, in my opinion, right in their contention, that G. O. 3199, even viewing it merely as a direction under Section 43-A (2) to extend an existing route, was an administrative order -- whether the addition of the restriction on the number of buses to ply on the extended route was right or wrong it was still an administrative order. Orders embodying such administrative acts, the learned counsel submitted, were outside the purview of correction by the issue of a writ of certiorari. That contention must prevail.

23. Subsequent to the issue of G. O. 3199, the third respondent applied to the Regional Transport authority for variation of the conditions of the permits he held for two other buses MDO 1959 and MDO 1960. These proceedings are still pending disposal by the Regional Transport authority. The Regional Transport authority has jurisdiction to consider that application. No writ of prohibition, could issue to the Regional Transport authority to provide for any anticipated breach of its legal obligations which one for example, to take into account only relevant factors and lawful directions given by the Government under Section 43-A (1) or Section 43-A (2).

24. No writ of mandamus can issue to the first respondent, the State. It has nothing further to do to give effect to the directions it has issued in G.O. 3199. When the Government by itself cannot give effect to a direction it has given to a Regional Transport authority, no question of issuing a writ of mandamus to direct the Government to forbear from giving effect to it arises. By a writ of mandamus the Government cannot be directed to cancel G. O. 3199. As I said, an application for a writ of certiorari to set aside G. O. 3199 will not lie.

25. The question that remains is, can a writ of mandamus issue to the second respondent the Regional Transport authority.

26. The learned counsel for the petitioner pointed out that what the petitioner seeks is a direction to the Regional Transport authority that it should forbear from giving effect to G. O. 3199. What in effect the petitioner wants is a direction, that the Regional Transport authority should not grant any variation of the conditions of two of the permits held by the petitioner (third respondent?). The contention of the learned counsel for the respondents, that a writ of mandamus should not issue for such a purpose, appears to be well founded.

27. The statutory obligation imposed on the Regional Transport authority by Section 43-A (2) is to give effect to the directions given by the Government. That such a direction should be lawful is obvious. Whether a variation granted by the Regional Transport authority on the basis of an unlawful direction purported to be given by the Government under Section 43-A (2) of the Act can be corrected by the issue of a writ of certiorari does not arise for consideration at this stage.

A mandamus is normally issued to compel the performance of duties of a public nature, and the applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the public authority against whom the mandamus is sought. What is the legal right that the petitioner has to demand of the Regional Transport authority the performance of any legal duty that it owes to him?

No such legal right could be claimed in relation to G. O. 3199. The petitioner no doubt has a statutory right to make his representations to the Regional Transport authority when it takes up for consideration the application of the third respondent for the grant of variation of the conditions of two of his permits, permits for MDO 1959 and MDO 1960. That right has not been interfered with by G. O. 3199. Whether the variation asked for by the third respondent has to be granted is still for the Regional Transport authority to decide after taking into account also the representations made by the petitioner.

Though in form what the petitioner asked for was a writ of mandamus, in effect it was really a writ of prohibition that he wants, no doubt limited to the exclusion of G. O. 3199 from all consideration when the Regional Transport authority is called upon to exercise in jurisdiction to decide whether the variation asked for by the third respondent should or should not be granted. I have pointed out earlier that a writ of prohibition cannot issue in the circumstances of this case.

28. There is another factor to be considered. In Halsbury's Laws of England, 3rd Edn., Vol. 11, p. 106, para. 198, it is set down:

''As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal......... ....Although a mere withholding of compliance with the demand is not sufficient ground for a mandamus, yet it is not necessary that there should have been a refusal in as many words. All that is necessary in order that a mandamus may issue is to satisfy the Court that the party complained of has distinctly determined not to do what is demanded."

29. The petitioner cannot claim that this test has been satisfied in this case. A writ of mandamus cannot issue, in anticipation of a refusal by the Regional Transport authority to consider the objections preferred by the petitioner.

Under these circumstances I have no option but to direct that the rule be discharged and the petition be dismissed. No order as to costs.


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