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Asia Bi (M.S. Salamath Transports) and anr. Vs. Ravi Roadways and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Reported in(1967)2MLJ109
AppellantAsia Bi (M.S. Salamath Transports) and anr.
RespondentRavi Roadways and ors.
Cases ReferredPacific Motor Auctions Pty. Ltd. v. Motor Credits
Excerpt:
- - the matter was heard by the regional transport authority, and, admittedly, there was a tentative order or memorandum by that authority (item 7 on the agenda dealt with by the regional transport authority, salem, on 24th january, 1964), in which the transfer was recommended, but subject to the confirmation of the transport commissioner under g. ravi roadways, the respondents being the state and the transport authorities as well as sabulal now deceased, for the issue of a writ of mandamus to direct the regional transport authority, salem, to give effect to the transfer of the permit, in respect of mds 5217, unconstrained by g. he refers to some evidence, like daily collection memos. since it is important that the service should not be affected, or the public inconvenienced by a.....m. anantanarayanan, j.1. these closely related proceedings involve certain questions of great interest and significance, arising both under the motor vehicles act, and under the general law of the power of the state to regulate the function of a quasi-judicial tribunal. at the outset itself, we might elucidate the context in which these proceedings have come up before us. in writ petition no. 201 of 1965, the petitioner before the learned judge (srinivasan, j.) was the widow of a certain sabulal sahib, who was operating three stage carriages on certain routes. with regard to the vehicle mds 5217, plying on the route pandamangalam to namakkal via velur and mohanur, sabulal entered into an agreement with messrs. ravi roadways (first respondent in writ petition no. 201 of 1965), for sale of.....
Judgment:

M. Anantanarayanan, J.

1. These closely related proceedings involve certain questions of great interest and significance, arising both under the Motor Vehicles Act, and under the general law of the power of the State to regulate the function of a quasi-judicial Tribunal. At the outset itself, we might elucidate the context in which these proceedings have come up before us. In Writ Petition No. 201 of 1965, the petitioner before the learned Judge (Srinivasan, J.) was the widow of a certain Sabulal Sahib, who was operating three stage carriages on certain routes. With regard to the vehicle MDS 5217, plying on the route Pandamangalam to Namakkal via Velur and Mohanur, Sabulal entered into an agreement with Messrs. Ravi Roadways (first respondent in Writ Petition No. 201 of 1965), for sale of the vehicle which, of course, included the permit to which it was attached. In our judgment in Viswanathan v. Shanmugam (1966) 1 M.L.J. 363 : I.L.R. (1966) 2 Mad. 477, we have dealt extensively with this latest significant development of the law relating to Motor Transport, namely, the composite character of a motor vehicle and the permit to which it is attached as a valuable business which is partible, heritable and alienable, on the one hand, and the regulating power of the State on the other, which makes such a permit personal to the grantee, not alienable without the consent of Authority. It is not necessary here to recapitulate that parallel development, both of the Common Law and the law relating to Motor Transport, that we have sought to interpret harmoniously in that judgment. For our present purpose, it is sufficient to note, that Sabulal and Messrs. Ravi Roadways made a joint application for recognition of the transfer under Section 59(1) of the Act, read with Rule 196 of the Motor Vehicles Rules. The matter was heard by the Regional Transport Authority, and, admittedly, there was a tentative order or memorandum by that Authority (item 7 on the Agenda dealt with by the Regional Transport Authority, Salem, on 24th January, 1964), in which the transfer was recommended, but subject to the confirmation of the Transport Commissioner under G.O. Ms. No. 2205, Home, dated 1st July, 1961, and Circular No. 36, dated 28th September, 1961, issuing detailed instructions under that Government Order.

2. While matters stood thus, Sabulal himself died on 8th October, 1964, admittedly, before there were any final orders recognising the transfer. Thereafter, what can only be described as a scramble for possession of the concerned motor vehicle, and a bitter dispute for recognition of the right to the permit, ensued as between Asia Bi, the widow of Sabulal, acting for herself and her sons, and Messrs. Ravi Roadways. The widow applied under Section 61 of the Motor Vehicles Act, for transfer of the permit in her name and recognition of her right to ply the stage carriage on the route. Messrs. Ravi Roadways made a similar application. We shall subsequently note the particulars of the events of this period, but, in this context itself, it is important to notice that on 30th November, 1964, Asia Bi purported to withdraw the joint application between her deceased husband Sabulal and Messrs. Ravi Roadways, instituted originally under Section 59(1) of the Act and under Rule 199-A of the relevant rules. On 8th January, 1965, upon the applications before him under Section 61, the Regional Transport Authority passed an order referring to the facts of the controversy and of the actual possession of the bus MDS 5217, and ultimately transferring the relevant permit in the name of Ravi Roadways under Section 61(2). The writ petition was instituted by Asia Bi before Srinivasan, J., praying for the issue of a writ of certiorari quashing this order of the Regional Transport Authority.

3. The learned Judge referred to the facts, in his judgment, and ultimately observed that the dispute between Asia Bi and Messrs. Ravi Roadways seemed to him to be essentially a matter for adjudication by the civil Court. The learned Judge was of the view that, since the Regional Transport Authority had the power under Section 59(1) of the Act to recognise the transfer, his jurisdiction exercised in favour of Messrs. Ravi Roadways under Section 61(2) of the Act, was not liable to be questioned. The writ petition was dismissed in limine, after Mr. M.K. Nambiyar had addressed arguments in the writ petition. Writ Appeal No. 16 of 1965, is an appeal from this decision. Writ Petition No. 1298 of 1964 is a proceeding by Messrs. Ravi Roadways, the respondents being the State and the Transport Authorities as well as Sabulal now deceased, for the issue of a writ of mandamus to direct the Regional Transport Authority, Salem, to give effect to the transfer of the permit, in respect of MDS 5217, unconstrained by G.O. Ms. No. 2205, Home, dated 1st July, 1961, which is sought to be impugned as ultra vires the powers of Government under Section 43-A of the Act. Both the writ appeal and this writ petition do involve questions of significance, upon which arguments have been addressed elaborately before us, and a multitude of authorities cited. Before we clarify the two questions of law that appear to require determination, some further reference is essential, both to the actual events, as can be gleaned from the pleadings, and to the terminology employed in Section 61 of the Act, Section 59(1) of the Act, and the rules promulgated under the latter section.

4. A scrutiny of the agreement between Sabulal and Messrs. Ravi Roadways shows that on 17th October, 1963, this agreement came into existence, for a consideration of Rs. 40,000 of which Rs. 27,500 was paid on that date. Another sum of Rs. 14,500 was paid on 6th November, 1963, and cash of Rs. 10,000 was paid on 20th February, 1964. The joint application by the transferor and the transferee under Section 59(1) was on 28th October, 1963; admittedly, this was notified under Section 57(3) of the Act by the Regional Transport Authority on 29th October, 1963. The meeting of the Authority was on 24th January, 1964; and the tentative order was then passed to which we have made earlier reference. Sabulal died on 8th October, 1964, and Writ Petition No. 1298 of 1964, was filed even earlier by Messrs. Ravi Roadways, in August, 1964, challenging the procedure under which the Regional Transport Authority had deferred his sanction to the transfer, pending confirmation of the proposal by the Transport Commissioner. On 3rd December, 1964, Messrs. Ravi Roadways applied for being recognised as entitled to the permit and to ply the vehicle on the route under Section 61 of the Act. Asia Bi had earlier applied, as the widow of Sabulal, on 29th October, 1964, and, on 17th December, 1964, she purported to withdraw the joint application under Rule 199-A. One moot point, upon which the record is certainly obscure and characterised by claims and counter-claims, the truth of which it is difficult to disentangle, is the actual possession of the vehicle after the death of Sabulal, and how the service was being maintained, and by whom. Since this is of some importance, and it bears upon the grounds for the decision of the Regional Transport Authority under Section 61, this aspect may be immediately adverted to.

5. The decision of the Regional Transport Authority is based on the following reasoning, after setting forth the bare facts. That Authority refers to Rule 199-A, namely, that,

when the consent of either or both the parties to the transfer of a permit is withdrawn before the transfer is sanctioned, the proceedings shall be dropped.

He then observes that since it was Sabulal who originally applied, and he did not oppose the transfer, his widow Asia Bi or his legal representatives could not really withdraw. He then cites Section 61(2) and adds that the emphasis in that section was on the possession of the vehicles rather than on mere ownership, in his judgment. He refers to some evidence, like daily collection memos., trip sheets, ticket books, etc., to show that Messrs. Ravi Roadways had been in actual possession of the bus MDS 5217. But here he makes a significant, and indeed, a glaring omission; he gives no finding whether this possession was prior to the death of Sabulal, or at his death, or on some subsequent date. He finally passes the order of transfer of the permit under Section 61(2) in the name of Messrs. Ravi Roadways. There is a significant endorsement to the effect that Asia Bi is directed to produce the permission and the registration certificates relating to MDS 5217 which she claims to be with her for making the necessary endorsement; this would certainly show that Messrs. Ravi Roadways were not in possession of these documents. As far as the record throws any light, it is very difficult for us to determine on which date, how, and under what circumstances, MDS 5217 passed into the possession of Messrs. Ravi Roadways. The case of Asia Bi and her son M.S. Jabbar is that the vehicle was being operated by a third party on behalf of Sabulal, up to 8th October, 1964, when the permit-holder died. The affidavit adds:

The first respondent (Ravi Roadways) took possession of the vehicle only on 26th October, 1964, taking advantage of the fact that the petitioner herein was a Purdanashin. The trip sheets and ticket books were made available to the first respondent herein only for the purpose of verifying the daily collections.

On the contrary, if we look at the affidavits, etc., available on behalf of Messrs. Ravi Roadways, the claim is that the Vehicle has been in the possession of Messrs. Ravi Roadways at least from 8th October, 1964, leaving alone any earlier date. In their letter to the Regional Transport Authority, dated 23rd October, 1964, Messrs. Ravi Roadways stated:

In fact we are now in actual possession of the vehicle.

But, in the application of Asia Bi, she makes a similar claim, and this much is clear from a later affidavit that a mediator to the dispute, was factually operating the vehicle on the route from 30th September, 1964 to 26th October, 1964. Significantly enough, it is stated in M.S. Jabbar's affidavits that though Messrs. Ravi Roadways were not in factual possession of the vehicle or operating the same, the petitioner was not putting in issue this fact, as the Court will not go into disputed questions of fact in a writ petition. This is the very confused state of the record on the factum of possession of the vehicle.

6. We may now proceed to refer, very briefly, to the relevant provisions of the law. Under Section 61(1) of the Act,

Where the holder of a permit dies, the person succeeding to the possession of the vehicles covered by the permit may, for a period of three months, use the permit as if, it has been granted to himself.

Two provisos follow, which need not concern us. Section 61(2) is important It runs:

The transport authority may, on application made to it, within three months of the death of the holder of a permit transfer the permit to the person succeeding to the possession of the vehicles covered by the permit.

As we have stated earlier, it is under Section 61(2) that, ultimately, the Regional Transport Authority made the order in favour of Messrs. Ravi Roadways. Under Section 59(1) of the Act,

Save as provided in Section 61, a permit shall not be transferable from one person to auother except with the permission of the transport authority which granted the permit and shall not without such permission operate to confer on any person to whom a vehicle covered by the permit is transferred any right to use that vehicle in the manner authorised by the permit.

It is indisputable, therefore, that Section 59(1) relates to transfers inter vivos of motor vehicles to which permits are attached and the regulating power of the State to recognise the transfer, or to grant the permit to the transferee. We have elaborately dealt with this aspect in our judgment in Viswanathan v. Shanmugam (1966) 1 M.L.J. 363 : I.L.R.(1966) Mad. 477. Section 61 provides for the totally different contingency of what happens on the death of the holder of a permit. Since it is important that the service should not be affected, or the public inconvenienced by a sudden failure of the transport service, Section 61(1) provides for a continuance of the service, upon the permit, temporarily, by the person succeeding to the possession of the vehicles covered by the permit. Section 61(2) provides for the transfer, in recognition of the facts of inheritance or succession.

7. It may be immediately stated that we are in entire agreement with the reasoning of Mr. Nambiyar for the appellant in Writ Appeal No. 16 of 1965, that certain complicated questions do here arise, and that, in any event, the dismissal in limine of the writ petition by the learned Judge (Srinivasan, J.) cannot be supported. That dismissal overlooks two vital considerations. Firstly, the learned Judge does not refer to, and does not discuss the effect of, the withdrawal of the application under Rule 199-A by Asia Bi on 17th December, 1964. Here, the argument is truly to be presented as the horns of a dilemma. If it is Sabulal alone who could withdraw under Rule 199-A, there is much to be said for the view that, with his death on 8th October, 1964, the application under Section 59(1) itself lapses, and becomes void. As the learned Judge (Srinivasan, J.) points out, what was really involved was a civil dispute between the parties concerning the further enforceability of the original agreement, and mutual rights thereunder. Alternatively, if it is to be construed that the joint application did not lapse, and continued to be effective and binding as against the legal representatives of Sabulal, it cannot then be pretended that the right which Sabulal undoubtedly possessed to withdraw at any stage before the formal sanction of the transfer, was lost to the widow or to the legal representatives. Here, we may conveniently set forth the relevant rules upon this procedure under Section 59(1). This starts with Rule 196, which states that the transferor shall,

together With the person to Whom he desires to make the transfer, make joint application in writing to the Transport Authority by which the permit was issued, setting forth the reasons for the proposed transfer.

Under Rule 197,

On receipt of an application under Rule 196, the Transport Authority may require the holder and the other party to state in writing Whether any premium, payment or other consideration arising out of the transfer, is to pass or has passed between them and the nature and amount.

Rule 198 provides that the transfer will be void for false information; it need not be set forth here. Rule 199 states that the Transport Authority,

may summon both the parties to the application for the transfer of a permit to appear before it and may, if it deems fit, deal with the application as if it were an application for a permit.

It is not disputed that that implies that the joint application may be notified under Section 57(3), and this was actually done in the present case. Rule 199-A provides, as we earlier saw, for withdrawal by either party before final orders, when the Authority shall drop further proceedings in regard to the transfer of that permit. There are two provisos to this rule, the first of which provides that, before proceedings are dropped on withdrawal, the party affected must be notified. The second proviso does not here concern us. Under Rule 200(a), if the Transport Authority is satisfied that the transfer of a permit may properly be made, it shall proceed further as provided in sub-rules (a), (b) and (c) of Rule 200, and endorse the transfer in the required records, on payment of fee.

8. We are now in a position to concentrate upon the legal issues involved in this situation. It is argued that the learned Judge (Srinivasan, J.) was not justified, in any event, in upholding the order of the Regional Transport Authority in favour of Messrs. Ravi Roadways under Section 61(2), as though it were an order under Section 59(1) of the Act. Such an order cannot be supported in certiorari proceedings, on grounds not disclosed in the order: see the observations of Rajamannar, O.C.J., in Vedachala Mudaliar v. The Central Traffic Board : AIR1948Mad454 ; also the dicta in R. v. Minister of Housing etc. (1960) 2 All E.R. 407. If the successor-in-interest namely, the widow and her sons, had the right to continue the application, there was also the right to withdraw under Rule 199-A the vires of which is not before us. In Taj Mahal Transports v. Regional Transport Authority (1965) 2 M.L.J. 453 : I.L.R. (1965) 2 Mad. 461, we have observed:

The main point is that the right of property embodied in a permit is transferable and heritable, that this has been recognised, and that such a devolution of interest must carry with it all incidental rights pertaining thereto, such as the right to continue an application for variation by the original holder. For, apart from the property in the permit itself, the application can have no independent existence, and is meaningless.

We would agree that the disposal of the writ proceeding by the learned Judge (Srinivasan, J.), without referring to this right under Rule 199-A, or alternatively to the contention that the application for transfer itself lapsed with the death of Sabulal cannot be sustained. Nor is it clear that the order of the Regional Transport Authority could be properly interpreted as an order by virtue of his powers under Section 59(1) of the Act. Again, taking the order ex facie as an order under Section 61(2), there are difficulties. Who is the person contemplated in that section, as succeeding to the possession of the vehicles covered by the permit? Is it the intendment of the Legislature on this aspect to provide for the rights of inheritance and succession to the composite property, namely, the Vehicle and its permit,? Will a mere de facto possession, entitle the possessor to apply under the section? If that possession had been obtained earlier, during the lifetime itself of the deceased permit-holder, could the possessor claim, in any sense, that he is succeeding to the possession of the vehicles covered by the permit? These related issues have to be dealt with on the aspect of Section 61 of the Act. Finally, there is the very important question whether G.O. Ms. No. 2205, Home, dated 1st July, 1961, is ultra vires the powers of the State under Section 43-A of the Act, and has to be struck down as an undue interference with the discretion of a quasi-judicial Tribunal? Clearly, unless this matter is decided and it is the issue upon which arguments have been most elaborately addressed and authorities cited by both the learned Counsel and the learned Additional Government Pleader for the State, Writ Petition No. 1298 of 1964, cannot be properly disposed of. Hence, before dealing with the arguments relating to Section 61(2) of the Act, as it impinges on the facts of the case, we shall first dispose of the issue of the validity of the impugned Government Order.

9. The argument of the learned Additional Government Pleader for the State, and of Mr. Nambiyar for the fourth respondent in Writ Petition No. 1298 of 1964, may be tersely stated in the following form. Though the Regional Transport Authority may be a quasi-judicial Tribunal, all his acts are not necessarily quasi-judicial in character. Even an act which he performs under the statute, such as according recognition to a transfer under Section 59(1), may be purely administrative, and not quasi-judicial. The procedure adumbrated by the rules, it is stressed, justifies far more the complexion of the act as administrative and not quasi-judicial. The application is joint by the transferor and the transferee, and there is no lis between them. The Authority may summon both the parties to the application to appear, and this implies that an enquiry is not mandatory. Even the notification of the permit under Section 57(3) of the Act, is purely discretionary. Finally, there is no objective criterion laid down, and it is the subjective satisfaction alone of the Authority that is made the guiding principle under Rule 200(a). It is strenuously contended that the principles enunciated by the Supreme Court in B. Rajagopala v. S.T.A. Tribunal, Rajagopala Naidu's case : [1964]7SCR1 , have no application to this particular context. Again, though under Section 64(g) there is a right of appeal to a party aggrieved by the refusal to grant the permission under Section 59(1), this is not conclusive upon the quasi-judicial character of the act, for the simple reason that an appeal may lie even from an administrative order. These arguments certainly merit careful consideration, and we shall first set forth the relevant principles, as enunciated in the authorities cited.

10. In Dwarka Nath v. I.T. Officer : [1965]57ITR349(SC) , the Supreme Court had occasion to deal with this aspect, very recently. Their Lordships observed that it was well-settled that a writ of certiorari could be issued only to quash a judicial or quasi-judicial act, and not an administrative act. They referred to the leading case of Rex v. Electricity Commissioners, London Electricity Joint Committee Co. (1920), Ex parte : [1950]1SCR621 . But this concept of a quasi-judicial act does not imply that it cannot emanate from an administrative Tribunal. Certain tests were laid down by Parker, J., in R.v. Manchester Legal Aid Committee L.R. (1952) 2 Q.B. 413, in order to bring out the distinction. Actually, there is a plethora of authorities available, and the problem rather is to focus clearly on what would be the true application of the principles to the situation provided for by Section 59(1) and the rules thereunder. We agree that the mere test of the provision of the appeal in Section 64(g) may not be conclusive. As pointed out by Ramachandra Ayyar, C.J., in Sambandam v. Khadar Sheriff (1965) 2 M.L.J. 453 : I.L.R. (1964) 2 Mad. 631, the right of appeal is a creature of statute, and may equally apply to administrative as to judicial decisions.

11. In B. Rdjagopala v. S.T.A. Tribunal : [1964]7SCR1 , the impugned Government Order purported to issue instructions or directions for the guidance of the Tribunal, namely, the Regional Transport Authority. The Supreme Court observed that we must assume that the Legislature intended to respect the basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi-judicial function, the Tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It was of the essence of fair and objective administration of law, that that decision should be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. Indisputably, the Regional Transport Authority is a quasi-judicial Tribunal, equally indisputably, the power that he is clothed with to recognise or permit a transfer inter vivos under Section 59(1) is a power under statute. But the argument is that this in itself does not make it a quasi-judicial act, which would either attract the writ jurisdiction under Article 226, or inhibit the state from issuing instructions under Section 43-A, of the Act. The procedure under the rules has, far more, the complexion of administrative procedure. There is no lis since the transferor and the transferee have to make a joint application. It is the subjective satisfaction of the Authority, which is made the sole criterion. As observed in Advani's case : [1950]1SCR621 , the question depends on the terms of the particular rule, the nature, scope and effect of the power in exercise of which the act may be done. Sri V.K. Tiruvenkatachari for Messrs. Ravi Roadways in Writ Petition No. 1298 of 1964, has drawn our attention to a very interesting statement of the evolution of law, on this aspect, in Basu's Constitution of India (third edition), volume III, page 533. Should the quasi-judicial obligation be laid down expressly in the statute, in order to attract certiorari,? This appears to be behind the majority view in Shri Radeshyam Khane and another v. State of Madhya Pradesh and Ors. : [1959]1SCR1440 . But the dicta of Subba Rao, J., would appear to suggest that the duty to act judicially may also be inferred from the provisions of the statute and has to be truly gathered from the cumulative effect of the relevant factors. Reference may also here be made to the dicta of Wanchoo, J., in Board of High School v. Ghanshyam : AIR1962SC1110 . In Shankarlal v. Shankarlal : [1964]1SCR717 , Rajagopala Ayyangar, J., in dealing with this aspect, has set forth the principle in the following terms at page 511:

It is perhaps not possible to formulate a definition which would satisfactorily distinguish, in this context, between an administrative and a judicial order. That the power is entrusted to or wielded by a person who functions as a Court is not decisive of the question whether the act or decision is administrative or judicial But We conceive that an administrative order Would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the rights of parties or confers or refuses to confer rights to property... One of the tests would be whether a matter Which involves the exercise of discretion is left for the decision of the authority, particularly if that authority Were a Court, and if the discretion has to be exercised on objective as distinguished from a purely subjective, consideration, it would be a judicial decision. It is sometimes been said that the cessence of a judicial proceeding or of a judicial order is that there Would be two parties and a lis between them which is the subject of adjudication,... it does not follow that the absence of a lis necessarily negatives the order being judicial.

In Ridge v. Baldwin L.R. (1964) A.C. 40, a very interesting problem arose whether the famous passage of Atkin, L.J., in Rex v. Electricity Commissioners, London Electricity Joint Committee Co. (1920), Ex-parte L.R. (1924) 1 K.B. 171, really implied that there should not merely be in existence dy with a duty to determine questions affecting the rights of subjects, but that there should be a superadded characteristic, that the body should act judicially, to be inevitably inferred or as explicitly stated in the context, before writ jurisdiction could apply. Lord Reid finally observed that this was a misunderstanding of the language of Atkin, L.J., and that the judicial element may be inferred from the nature of the power in the case. The entire passage deserves to be quoted verbatim though it is of some length:

The matter has been further complicated by what I believe to be a misunderstanding of a much quoted passage in the judgment of Atkin, L.J., in Rex v. Electricity Commissioners, London Electricity Joint Committee Co. (1920), Ex-Parte L.R. (1924) 1 K.B. 171,. He said...the operation of the writs (of prohibition and certiorari) has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as, Court of Justice. Wherever 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 Kings Bench Division exercised in these Writs.

A gloss Was put on this by Lord Hewart, C.J. in Rex v. Legislative Committee of the Church Assembly Ex-parte Haynes Smith L.R. (1928) 1 K.B. 411. There it was sought to prohibit the Assembly from proceeding further with the Prayer Book Measure, 1927. That seems to me to have no resemblance to a question Whether a person should be deprived of his rights or privileges, and the case Was decided on the ground that this was a deliberative or legislative body and not a judicial body. Salter, J., put in a few lines: 'The person or body to whom these writs are to go must be a judicial body in this sense, that it has power to determine and to decide; and the power carries with it, of necessity, the duty to act judicially. I think that the Church Assembly has no such power, and therefore no such duty.' But Lord Hewart said, having quoted the passage from Lord Atkin's judgment: 'The question therefore which we have to ask ourselves in this case is whether it is true to say in this matter, either of the Church Assembly as a whole, or of the legislative Committee of the Church Assembly, that it is a body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially. It is to be observed that in the last sentence which I have quoted from the judgment of Atkin, L.J., the word is not 'or' but 'and.' In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of objects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially. The duty to act judicially is an ingredient which, if the test is to be satisfied, must be present. As these writs in the earlier days were issued only to bodies Which Without any harshness of construction could be called, and naturally would be called Courts so also today these writs do not issue except to bodies which act or are under the duty to act in a judicial capacity.'

12. I have quoted the whole of his passage because it is typical of what has been said in several subsequent cases. If Lord Hewart meant that it is never enough that a body simply has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it can be found to observe the principles of natural justice, then that appears to me impossible to reconcile with the earlier authorities, I could not reconcile it with what Lord Denman, C.J., said in Reg v. Smith L.R. 5 Q.B. 615, or what Lord Campbell, C.J., said in Ex-parte Ramshay L.R. 18 Q.B. 173 or what Lord Hatherley, L.C., said in Osgood v. Nelson L.R. 5 H.L. 636, or What was decided in Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180., or Hopkins v. Smelwick Local Board L.R. 24 Q.B. 712, or what Lord Parmoor said in De Verteuil v. Knaggs L.R. (1918) A.C. 557, or what Kolly, C.B., said with the subsequent approval of Lord Macnagten in Wood v. Wood L.R. 9 Ex. 190, or what Jessel, M.R., said in Fisher v. Keane L.R. 11 Ch.D. 353, or what Lord Birkenhead, L.C,, said in Weinberger v. Inglis L.R. (1919) AC 696, and that is only a selection of the earlier authorities. and as I shall try to show, it cannot be what Lord Atkin meant,

13. In Rex v. Electricity Commissioners, London Electricity Joint Committee Co. (1920) Ex-parte L.R. (1924) 1 K.B. 171 the Commissioners had a statutory duty to make schemes With regard to electricity districts and to hold local inquiries before making them. They made a draft scheme which in effect allocated duties to one body which the Act required should be allocated to a different kind of body. This was held to be ultra vires and the question was whether prohibition Would lie. It was argued that the proceedings of the Commissioners were purely executive and controllable by Parliament alone. Bankes, L.J., said

On principle and on authority it is in my opinion open to this Court to hold, and I consider that it should hold, that powers as far-reaching, affecting as they do individuals as well as property, are powers to be exercised judicially, and not ministerially or merely, to use the language of Palles, C.B., as proceedings towards legislation.' So he inferred the judicial element from the nature of the power. And I think that Atkin, L.J., did the same. Immediately after the passage Which I said has been misunderstood, he cited a variety of cases and in most of them I can see nothing 'superadded' (to use Lord Hewart's word) to the duty itself. Certainly, Lord Atkin did not say that anything was superadded. And a later passage in his judgment convinces me that he, like Bankes, L.J. inferred the judicial character of the duty from the nature of the duty itself. Although it is long, I am afraid I must quote it: 'In the present case the Electricity Commissioners have to decide Whether they will constitute a joint authority in a district in accordance with law, and With what powers they will invest that body. The question necessarily involves the Withdrawal from existing bodies of undertakers of some of their existing rights, and imposing upon them of new duties, including their subjection to the control of the new body, and new financial obligations. It also provides in the new Body a person to whom may be transferred rights of purchase which at present are vested in another authority. The Commissioners are proposing to create such a new body in violation of the Act of Parliament, and are proposing to hold a possibly long and expensive inquiry into the expediency of such a scheme in respect of Which they have the power to compel representatives of the prosecutors to attend and produce papers. I think that in deciding upon the scheme, and in holding the inquiry, they are acting judicially in the sense of the authorities I have cited...

We may here note, as a matter of interest and importance, that Ridge V. Baldwin L.R. (1964) A.C. 40, was referred to, at some length, in the recent judgment of the Supreme Court, A.C. Companies v. P.N. Sharma (1966) 1 S.C.J. 786 : A.I.R. 1965 S.C. 1959, and cited with approval. Their Lordships observed, in summing up:

It would thus be seen that the area where the principles of natural justice have to be followed and the judicial approach has to be adopted, has become wider and consequently, the horizon of the writ jurisdiction has been extended in a corresponding measure.

In the present context, though many authorities have been cited, we are unable to find any justification for the interpretation of the learned Additional Government Pleader and of Mr. Nambiyar, that the statutory power which is exercisable by the Regional Transport Authority under Section 59(1) of the Act, is not a quasi-judicial power. The matter stands upon the stronger footing in the present case that the authority decided to notify the application under Section 57(3); and to follow the prescribed procedure; since objections could, therefore, be filed by parties who could claim to be affected, by the recognition of the transfer, it is even arguable that there is a lis in the strict sense. Certain aspects of policy concerning the recognition of such a transfer, were dealt with by a Bench of this Court in Sathianathan v. Amaravathi : (1964)1MLJ140 . A Bench of the Madhya Pradesh High Court held in Poonamchand v. R.T. Authority : AIR1962MP203 , that, though a person could object to the transfer he could not claim that if the transfer is not to be permitted, his application for the permit should be considered; for the plain consequence of the refusal of permission is that the permit continues with the transferor. In Chittoor Conveyance Corpn. v. R.T.A., Chittoor (1960) 2 A.W.R.447, a Bench of the Andhra High Court held that the sanction of a new route, or a refusal to sanction, was purely administrative, and that the Regional Transport Authority need not hear the parties, nor furnish copies of reports to a person claiming to be affected. In H.W.R. Wade's Administrative Law at page 53, the author points out that it would be a factor vitiating the exercise of a discretion where a person entrusted with it exercises it, at the dictation of some other person. On this aspect, the argument could be sustained that, even apart from the act being quasi-judicial or the fact of the notification under Section 57(3) rendering it so in the instant case, the impugned Government Order will have to be struck down, if only for the reason that the statutory discretion is vested in the Regional Transport Authority under the Act. The Transport Commissioner, whom the statute does not clothe with this power, cannot, in effect, usurp it, by the instruction that the Regional Transport Authority cannot exercise this power unless he (the Commissioner) confirms the grant of permit, where the Regional Transport Authority is for the sanction. See also Commissioner of Police v. Gordhandhas : [1952]1SCR135 .

14. We might here, refer, for the sake of completeness, to the authorities cited, particularly by the learned Additional Government Pleader for the State, on different occasions and in differing legislative contexts, in which Courts have held that the satisfaction is subjective, and hence, that a particular decision is administrative and not quasi-judicial. It is not necessary to discuss this catena of cases at any great length, for we think that it can be easily shown in the present case, that the exercise of the power has to be regarded as quasi-judicial. On the authority of the definite dicta in Rajagopala Naidu's case : [1964]7SCR1 , the Government Order and the instructions relevant thereto must be considered ultra vires the powers of the Government under Section 43-A. The authorities referred to on behalf of the State and by Mr. M.K. Nambiyar, are as follows: L versidge v. Sir John Anderson : (1950)NULLLLJ921SC ; Madras State v. C.P. Sarathy : (1953)ILLJ174SC ; K.D. Company v. K.N. Singh 11. : [1955]2SCR206 ; Lila Vati Bai v. Bombay State 12. : [1957]1SCR721 . Rajangam v. State of Madras I.L.R. (1959) Mad. 12 : (1959) M.L.J. (Crl.) 71 : (1959) 1 M.L.J. 71. Abdul Gafoor V. State of Mysore : [1962]1SCR909 ; and Jayantilal Amratlal v. F.N. Rana : [1964]5SCR294 .

15. It appears to us that, upon none of the arguments addressed by the learned Additional Government Pleader for the State, could we conceivably hold that the decision of the Regional Transport Authority under Section 59(1) of the Act and the rules framed thereunder is an administrative act and not a quasi-judicial one, in respect of which instructions could be issued by Government under Section 43-A. It cannot be disputed that the Regional Transport Authority is a quasi-judicial authority under the Act, indeed this is conceded. It is equally indisputable that his power under Section 59(1) to recognise a transfer or to withhold his consent thereto, is a statutory power. We are unable to see how it could be maintained that the exercise of this power does not affect the rights of parties. On the contrary, and this is the crux of our reasoning in the judgment in Viswanathan v. Shanmugam I.L.R. (1966) 2 Mad. 477 : (1966)1 M.L.J. 363., that there is the common law development treating the bus with the permit attached thereto as a species of property, that is, a valuable business, which is heritable, alienable and partible. Suppose, that the transfer is not recognised, on grounds of policy, it certainly affects the rights of the parties to the agreement. Conceivably, all such agreements to transfer come into existence, contingent upon the recognition by the regulating authority. If the transfer is recognised, again rights are affected and perfected. As we pointed out, where the procedure under Section 57(3) is adopted, there may well be a lis also, there may be objectors to the transfer. Even upon the narrow issue of satisfaction, though it is certainly the satisfaction of the concerned authority, we are unable to see how the argument could be sustained that the satisfaction has no element of objectivity in it. In Liver sidge v. Sir John Anderson L.R. (1942) A.C. 206. Atkin, L.J., reasoned that the exercise of a power which may greatly affect the rights of parties, ought, as far as possible, to be interpreted as possessing an objective basis if the language used could conceivably justify this. In the matter under consideration, we do not think it is difficult to perceive wherein the objectivity might well consist. A transferee could claim to be regarded as at least upon an equal footing with an applicant for the permit; the same broad criteria, in relation to the interests of the public, might regulate the question of the grant or the withholding of consent. Where a transfer is declined, the aggrieved party has a right of appeal. If we suppose that there is no element of objectivity whatever in the decision of the Regional Transport Authority, it is extremely difficult to see how such an appeal could at all be heard and determined, by the relevant appellate body. In other words, the very statutory provisions require not merely the exercise of a discretion, but that this should be made evident in the language of the order, particularly where the recognition to the transfer is declined. To permit the Transport Commissioner to confirm or not confirm, a proposal for transfer, in effect, implies that this Executive Authority arrogates to himself a decision which is the exclusive power of a statutory Tribunal. This cannot be permitted, and it is not in consonance with the canon distinguishing the Rule of Law as stressed by their Lordships of the Supreme Court in Rajagopala Naidu's case : [1964]7SCR1 . Upon all these grounds, we are of the view that the Government Order and instructions issued thereunder cannot be sustained. The order is in excess of the powers of Government under Section 43-A, since the Transport Commissioner cannot dictate to the Regional Transport Authority, that, even where the Regional Transport Authority has decided to exercise his statutory power of consent under Section 59(1), the Transport Commissioner has a right to confirm or decline to confirm the exercise of that power.

16. It follows that Writ Petition No. 1298 of 1964, will have to be allowed but in quite different terms from the terms prayed for by the writ petitioner. For the mandamus must direct the Regional Transport Authority now to take up the application and to dispose of it, indeed unconstrained by the terms of the Government Order and Instructions, but paying due regard to aspects of this matter that have not been adverted to at all. Firstly, there is the question whether the death of Sabulal puts an end to the application. We are of the view that it need not put an end to the application, for the simple reason that Courts have always recognised the devolution of interest in that species of property which is a permit and the motor vehicle to which it is attached. It is now too late in the day to argue that this composite asset or business is not heritable, alienable and partible. If an application for the variation of a permit can be continued by the legal representative, a joint application for transfer may certainly be continued by the legal representatives of the deceased transferor or transferee. But the writ petitioner cannot have it both ways. If the heirs of the deceased Sabulal have a right to continue the application, the right under Rule 199-A to withdraw may be available to them, as much as to Sabulal himself. The vires of that rule is not being questioned. The effect of this withdrawal has to be necessarily considered by the Regional Transport Authority. He must then decide whether recognition is to be accorded or otherwise. We are taking it, on the record, that he has not made any such decision so far, for the tentative decision, of which a record was made earlier, was not actually a decision under Section 59(1) of the Act. It was, in terms, only a proposal which was referred to the Transport Commissioner under the Government Order. Writ Petition No. 1298 of 1964 is allowed in these terms. The parties will bear their own costs.

17. We shall deal with, more briefly, with the writ Appeal itself. It seems to us that the writ of certiorari will have to be granted, since the order under Section 61(2) in favour of Messrs. Ravi Roadways cannot be possibly supported. Whatever rights Messrs. Ravi Roadways may claim under Section 59(1) of the Act, their rights are not referable to Section 61(2) at all, and we are unable to accept the argument that the words succeeding to the possession of the vehicles covered by the permit can possibly include in that ambit a transferee inter vivos from the deceased permit-holder whose transfer has not received recognition under Section 59(1) of the Act. The reason is obvious. As Mr. Nambiar rightly points out that Section 61, in its terms, supersedes Section 59. Where Section 61 applies, the relevant date for the ascertainment of rights must be the date of the death of the permit-holder. As we have seen, Messrs. Ravi Roadways cannot possibly claim that, on that date, they succeeded to the possession of the vehicle covered by the permit under any conceivable devolution of right under law. They were already transferees, whose rights were under an earlier agreement. Further, they would appear to claim that they had already succeeded to the possession of the vehicle. Sri V.K. Thiruvenkatachari for Messrs. Ravi Roadways offers certain interesting arguments upon this aspect of what, respectively, Asia Bi succeeded to, and Messrs. Ravi Roadways could claim to have succeeded to. According to him, the concept of inheritance (Salmond's Jurisprudence, eleventh edition, page 482) would include the jus accrescendi namely rights which the dead person may no longer own in propria persona, and obligations which he can no longer fulfil in propria persona. In other words, his substitute or representative could also be a person who acquired rights by a transfer inter vivos. The term succession has an enlarged meaning given to it, under law, and a successor-in-interest of the Vendor could also claim to be the legal representative of the deceased, in other words, the buyer can stand in the shoes of the seller. Passages in the Common Law by Holmes (at pages 341, 365 and 409) which are an expansion of certain ideas of the Jurist Savigny, are relied on. Also the definitions in Prem's Judicial Dictionary of Successor and Words and Phrases of Roland Burrows, Volume V, page 211. The term successors in business came in for interpretation in Pye v. Minister for Lands for New South Wales (1954) 1 W.L.R. 1410, See also Pacific Motor Auctions Pty. Ltd. v. Motor Credits (Hire and Finance) Ltd. (1965) 2 W.L.R. 881..

18. The argument may be an interesting one, but, in our considered view, it has little force or applicability to the present situation. Here, we have an agreement which is inchoate, in the sense that it is contingent upon the consent to be given by the regulating Authority, namely, the State, to the proposed transfer. That consent was a statutory discretion to be exercised by the Regional Transport Authority. Actually, the application was pending, and he did not exercise it when the transferor died. The transferee might have obtained de facto possession of the motor Vehicle during the lifetime of the transferor himself. The facts of the record, on this aspect, are quite obscure. However, that might be, Messrs. Ravi Roadways did not succeed to the possession of the vehicle covered by the permit, within the meaning of Section 61(2) of the Act. The intendment of that section is clear. No doubt, the emphasis is on possession, but it is upon lawful possession obtained by some party or parties, as stemming from a particular event, namely the death of the permit-holder. It is not in this manner, that Messrs. Ravi Roadways claimed under Section 61(2) whatever their rights might be under Section 59(1). Indeed, it seems obvious to us that both the application under Section 61(2) and the application under Section 59(1) will have to be dealt with, as a whole, by the concerned Regional Transport Authority, with reference to both the Sections of law. If he decides now to make the transfer, notwithstanding the withdrawal under Rule 199-A by the legal representative of Sabulal (deceased), then there is really no further question for decision under Section 61 of the Act. For the permit itself will, thereafter, vest in the transferee (Messrs. Ravi Roadways). If, on the contrary, the transfer is not recognised, then the application of the legal representative or representatives under Section 61(2) will have to be allowed, if factual possession by such party or parties can be proved on and after 8th October, 1964, namely, the date of death of Sabulal. The writ appeal will accordingly have to be allowed and the writ of certiorari will have to issue releasing the proceedings for further decision in the light of the observations in this judgment. The parties to bear their own costs.


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