Dated Calcutta the I4th August, 1956. In exercise of the power conferred by Section 58-A of the Motor Vehicles Act 1939 and in supersession of orders contained in this Department memoranda Nos. 8222-WT dated 27th August, 1951, 1886-WT dated 1st March, 1952 and 436-WT dated 25th January, 1955, the Governor is in the interest of the public generally pleased to direct the Regional Transport Authority Calcutta, to grant a service permit for stage carriage in favour of the Directorate of Transportation, Government of West Bengal, in respect of 700 Nos. stage carriages for operation of passenger services within the Calcutta Region.
By order of the Governor
Sd/- J.N. Talukdar
Secy. to the Govt. of West Bengal.'
6. Sri Jatindra Nath Talukdar, Chief Secretary to the Government of West Bengal and the Chairman of the Calcutta State Transport Corporation also affirmed an affidavit on 4th August, 1960 and this was filed on behalf of the State. In this affidavit Sri Talukdar has referred to the fact that on the 17th July, 1956, the Directorate of Transportation requested the Assistant Secretary, Home (Transport) Department of the Government of West Bengal to grant a fresh service permit for such carriages in respect of 700 vehicles within the Calcutta Region in favour of the Directorate as the numbers sanctioned previously would soon be exceeded and in paragraphs 3, 4 and 5 of the said affidavit he has recorded certain further facts which may be set out hereunder:-
'3. That the said letter was first dealt with in the Home (Transport) Department of the Government of West Bengal and the Assistant Secretary, Home (Transport) Department, endorsed a note recorded by the dealing Assistant, Shri Dulal Krishna Dey on the nth day of August, 1956, in the relevant office file to the following effect:-
'Letter No. 2g68-ST dated 17-7-56 from the Directorate of Transportation. The Directorate have requested that order be issued for issue of a fresh service permit for 700 buses as the number of buses viz., 500 included on the existing service permit will be exceeded soon. As suggested order may be issued on the R. T. A. Calcutta to grant a service permit for 700 buses. Draft put up may issue after Secretary has seen.
This file was placed before me on the I3th August, 1956. On considering the matter I was satisfied that an order under Section 58-A of the Motor Vehicles Act should be made for grant of a permit for the Directorate of Transportation for 700 buses in the Calcutta region, and I directed that an order in the form of the draft which was placed before me, should be issued. I made the said order on the 13th August, 1956, and signed the office note. True copy of the said draft and the letter of Directorate of Transportation dated 17th July, 1956, are annexed herewith and collectively marked 's'.
4. I have made enquiry from Shri Dulal Krishna Dey, the Assistant who dealt with the said file and have ascertained from him that the pasted draft which is now in the file is the draft which was placed before me at the time and that he had pasted a paper on the first page of the draft on account of certain inaccuracies therein.
5. As the Secretary, Transport Branch of the Home Department I was competent to deal with the matter and to make the said order.'
7. It appears that at the hearing before the learned trial Judge Sri Talukdar the Secretary, and the Assistant Secretary Benoy Kumar Sen and Dulal Krishna De, an upper division assistant in the Home Department who are referred to in the affidavit of Sri Talukdar were examined as witnesses, and were questioned at length with regard to the note sheets and with regard to the order dated 14th August, 1956, which is marked as Exhibit No. 2. Dulal Krishna De on being asked about the procedure which is followed with regard to preparation of note sheets has stated that as soon as a proposal is received from the Directorate for the issue of a permit he examines the proposal and submits a note and along with it puts up adraft before the Assistant Secretary and he also makes suggestions in the note and asks for an order from the Secretary. He has explained that by the word 'draft' he means that the particular form in which the order is to be issued is dratted by him and the practice is to put up the whole thing before the Secretary and sometimes the draft order is signed by the Secretary and sometimes it is not. When his attention was drawn to the note sheet, he has made it clear that the draft order which was intended to be actually issued under the signature of Sri J.N. Talukdar, Secretary to the State Government, was not actually signed by the Secretary but the Secretary had put his signature un the note sheet and so it was taken for granted according to the procedure prevelant in the office that the whole thing including the draft of the order had been approved by the Secretary. He was also questioned with regard to certain pasting that had been made on the pages where the draft order is recorded and he has given an explanation as to why pasting was done. His evidence is that when he wrote out the entire draft and revised it he found that there were certain inaccuracies in the first page and so that page was pasted and he wrote out again the portion which appears in the pasted page. Although the evidence of this witness contradicts the evidence which was given by Sri Talukdar in one or two points, it appears that he has substantially told the truth. The Assistant Secretary Benoy Kumar Sen has also deposed before this Court and he haa stated that he had also the power of authenticating orders which would issue at the instance of the State Government and he had approved of and appended his signature to the note sheets on nth August, 1956. But after Sri Talukdar had given his approval to the proposal and had also approved the draft form of the order which had been written out in the hand-writing of Dulal Krishna De including the signature of Sri Talukdar as 'Sd/- J.N. Talukdar' the same became the order passed by Sri Talukdar. Sri Talukdar as already stated has also given evidence and on being asked whether he had approved the draft order contained in the note sheet which was now being placed before him and whether this was really the draft which was placed at the time when he had signed the note sheet on the 13th August, 1956, he has stated very candidly that it is difficult for him to have any independent recollection about the matter but he has no reason to doubt the veracity of the draft. He has also stated that the approval given by him of this draft order is indicated in the note sheet and after having signed the note sheet he did not consider it necessary to sign the draft order. He has also stated that the procedure in the office is that sometimes the Secretary did sign the draft order and sometimes he did not. According to him, by signing the note sheet he has endorsed the fact that the draft was all right and that an order in the form of the draft should be issued by the office. In other words, the draft of the order was the order that he intended to issue and the words 'Sd/- J.N. Talukdar' were put in the draft for the guidance of the typist and was an indication of the fact that the order as drafted had been approved by Sri Talukdar. The signature appearing in the note sheet is accordingto him' indicative of the fact that he has found the draft order all right and in token of his approval of the drart and the form in which the order was to be made he had signed the note. On looking at the order which was actually issued under date 14th August, 1956, Sri Talukdar has further stated that the order had been passed by him on the 13th August and the order which actually issued out of the office should also bear that date 13th August; but looking at the order which was placed before him he found it was the date of issue of the order namely the 14th August, 1956, that had been put as the date of the order. He has further stated that the draft order as appearing in the note sheets was the order made by him and it was really his order and it was really authenticated by him. (Q. 54).
8. Having regard to this state of the evidence and after examining the original note sheets which have been exhibited in this case, we have no manner of doubt that the order as appearing in the note sheets including the portion 'By order of the Governor, Sd/- J.N. Talukdar, Secretary to the Government of West Bengal' was the order made by Sri Talukdar on the 13th August, 1956, and he had also authenticated that order and it was his intention that that order should be issued by the office and communicated to the Regional Transport Authority as the order of the State Government. It is true that no order was actually made by Sri Talukdar on the 14th of August, 1956, but it is clear upon the evidence on record that that is the date of the issue of the order. If instead of any date being given in the order which was in fact dated as 14th August, 1956, the order had been kept undated and that had been sent out to the Regional Transport Authority, the order could not be regarded as an invalid order by any stretch of imagination. Similarly, if instead of the order being typed out and sent to the Regional Transport Authority, the draft order as appearing in the handwriting of Dulal Krishna De in the note sheet had been sent to the Regional Transport Authority, could it be said that the order was not a valid order as contemplated by Section 58-A of the Motor Vehicles Act, 1939? In my view the answer must be in the negative. The evidence on record, in our view, proves beyond all doubt that on T3th August, 1956, an order as contemplated by Section 58-A of the Motor Vehicles Act, 1939 had been made by Sri Talukdar as Secretary to the Government of West Bengal and such order had been authenticated by his signature which was put at the end of the note sheets although on a different page. In my view it was not necessary in the absence of any specific rule to that effect for Sri Talukdar for the purpose of authenticating the draft order to put his signature at the place where the words 'Sd/-J.N. Talukdar' appear in the draft order. Strong reliance has been placed on the provisions of Article 166(1) of the Constitution and on the decision' of the Supreme Court reported in Dattatrava Moreshwar v. State of Bombay, : 1952CriLJ955 . It will be convenient at this stage to set out the relevant portion of Article 166 which is as follows :-
'166 (1). All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and
executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.'
9. Now the only rules relating to making or execution of orders or instruments by or on behalf of the Government of West Bengal which have been made in exercise of the powers conferred by Clause (2) of Article 166 of the Constitution, to which our attention has been drawn, are those contained in the notification No, 2256 A.R. dated 25th August, 1951, (published in the Calcutta) Gazette Extraordinary of the 25th August, 1951, Part 1, pages 1039 1040) and are as follows : -
(1) All orders or instruments made or executed by or on behalf of the Government of West Bengal shall be expressed to be made or executed by or by orders of the Governor of West Bengal.
(2) Save in cases where an officer has been specifically empowered to sign an order or instrument of the Government of West Bengal, every such order or instrument shall be signed by either a Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or an Assistant Secretary to the Government of West Bengal and such signature shall be deemed to be an appropriate authentication of such orders or instruments.
Explanation: - In this rule the reference to a Secretary, a Joint Secretary, a Deputy Secretary. an Under Secretary and an Assistant Secretary shall include respectively reference to an Additional Secretary, an Additional Joint Secretary, an Additional Deputy Secretary, an Additional Under Secretary and an Additional Assistant Secretary.'
10. It will thus appear that the rules framed under Article 166(2) enjoin that for the purpose of authentication of an order it is essential that the officers empowered to authenticate an order or instrument of the Government of West Bengal will have to sign the order or the instrument. In the case before us as I have pointed out already, by signing the note sheet on the 13th August, 1956, as a token of approval of the entire note sheets including the draft order bearing the expression 'Sd/- J.N. Talukdar', Sri Talukdar had authenticated the order made by him as contemplated by Article 166(2) of the Constitution and the rules framed thereunder. In the Supreme Court decision of : 1952CriLJ955 S.R. Das, J., in dealing with the contention based on Article '66 of the Constitution observed as follows :-
'It is at this stage that the learned counsel for the petitioner passes on to Article 166 of the Constitution and contends that all executive action of the Government of a State must be expressed and authenticated in the manner therein provided. The learned Attorney-General points out that there is distinction between the taking of an executive decision and giving formal expression to the decisions so taken. Usually executive decision is taken on the office files by way of notings or endorsements made by the appropriate Minister orofficer. If every executive decision has to be given a formal expression the whole governmental machinery, he contends, will be brought to a stand-still.
I agree that every executive decision need not be formally expressed and this is particularly so when one superior officer directs his subordinate to act or forbear from acting in a particular way, but when the executive decision affects an out sider or is required to be officially notified or to be communicated, it should normally be expressed, in the form mentioned in Article 166(1) i.e., in, the name of the Governor.'
11. In the case of State of Bombay v. Purshottam Jog, : 1952CriLJ1269 in dealing with a question whether an order made under the Preventive Detention Act was a valid order or not, the Supreme Court had occasion to consider the meaning of the expression 'expressed', as occurring, in Article 166(1) of the Constitution. Patanjali Sastri, C.J., observed:
'that one of the meanings of 'expressed' is to make known the opinion or the feelings of a partcular person and when a Secretary to the Government apprehends a man and tells him in the order that this is being done under the orders of the Governor he is in substance saying that he is acting in the name of the Governor and on his behalf is making known to the detenu the opinion and feelings and orders of the Governor. In our opinion the Constitution does not require a magic: incantation which can only be expresed in set, form. What we have to see is whether the substance of the requirements is there.'
12. It may be noted that in Dattatraya's case, : 1952CriLJ955 the Supreme Court had also laid down that the provisions of Article 166 (1) and (2) are directory and not mandatory in their nature and that substantial compliance of the requirements of that Article is all that is necessary.
13. As I have pointed out already, the requirements of Article 166(2) have been complied with in this case and therefore, the order which was made and authenticated by Sri Talukdar as Chief Secretary to the Government of West Bengal does not lose the protection provided in Clause (2) of Article 166 and is therefore, immune from challenge in a Court of law on the ground that it has not been made or executed by the Governor of a State.
14. Another point was urged on behalf of the appellant that the permit of the respondents Naib Transport Private Ltd., and Sarat Kumar Chatterjee having expired by effluxion of time on the 31st March, 1960, they had no right to maintain the application under Article 226 of the Constitution on the 13th May, 1960, when such application was moved and a Rule Nisi was issued. Reliance is placed on a decision of the Supreme Court reported in Kalyan Singh v. State of U.P., AIR 1962 SC 1183 in which it was pointed out that after cancellation of a permit which was made as a result of a scheme of nationalisation of transport having been brought into existence, the persons whose permits had been cancelled could not maintain a petition for a writ under Article 226, because the right to maintain such a petition postulates a subsisting personal right in the claim which the petitioner makes and in the protection of which he is personally interested. The Supreme Court further observed in this case as follows:-
'It is true that the appellant did on the date if the petition filed in the High Court hold a permit which was to enure till the 27th November, 1960; but if the permit was validly terminated from the date specified he will not be entitled to relief even if he had on the date of the petition a subsisting right.'
15. In answer to this contention of the learned counsel for the appellant, the counsel for the respondent has stated that on the 13th May, 1960, when the petition under Article 226 was moved the respondent Naib Transport Private Ltd., and 'Sarat Kumar Chatterjee had an application for renewal of the permit pending before the Regional Transport Authority and until that application for renewal was disposed of it could not be said that the said respondents had no right to maintain a petition under Article 226 and it was further submitted by the counsel for the said respondents that if this point had been taken before the trial Court the said respondents might put on record further materials to show that they had some subsisting right for the purpose of maintaining the petition under Article 226. In view of our finding on the question whether there was a valid order made under the provisions of Section 58-A of the Motor Vehicles Act, 1939, we do not think it necessary to express any opinion on this point. Inasmuch as the second and third points which were pressed by the respondents Nos. 1 and 2 before the learned trial Judge have not been pressed before us and our finding on the first point namely whether there was a valid order made under Section s8-A of the Motor Vehicles Act is in favour of the appellant, this appeal is allowed and the judgment and order of the learned trial Judge are set aside and the application of the respondents Naib Transport Private Ltd., and Sarat Kumar Chatterjee under Article 226 of the Constitution is dismissed. There will be no order as to costs.
16. I agree.