A. Vedachala Mudaliar vs The Central Road Traffic Board and Another

Rajamannar, O.C.J.

This is an application for the issue of a writ of certiorari calling upon the Central Road Traffic Board, Madras, to send the records in its

proceedings No. 9820-A 1/47 and to quash the order made by it on 26th June, 1947.

The petitioner is the proprietor of a bus transport service named Sri Gandipan Bus Service. He had been granted permits to run three buses on

the route from Madras to Mahabalipuram. On the 1st of December, 1946, the petitioner applied to the Regional Transport Officer, Vellore, for

permission to divert his buses on the route between Madras and Mahabalipuram at a village named Yechur to a village called Manamady, 2-1/2

miles from Yechur. Prior to this application there was a petition from the villagers of Manamady praying for a diversion of the buses plying from

Madras to Mahabalipuram to their village. The Regional Transport Authority published a notification on the 25th March, 1947, u/s 57(3) of the

Motor Vehicles Act, 1939, intimating that an application had been received from the petitioner for diversion of his buses running between Madras

and Mahabalipuram via Manamady, fixing the date for representation to the 10th April, 1947, and the date for consideration of the application to

the 26th April, 1947. Apparently no representations were received and on the 28th April, 1947, the Regional Transport Officer, Vellore, passed

an order permitting the petitioner to run his buses in the same route from Madras to Mahabalipuram via Manamady until further orders.

The second respondent to this application is Sri Thirupurasundari Bus Service, Tirukalikundram. On its behalf an appeal was preferred to the

Central Road Traffic Board on the 29th April, 1947. It may be mentioned that the second respondent was not a person who had objected to the

grant of the permission sought by the petitioner and he was not entitled to prefer an appeal u/s 64 of the Motor Vehicles Act. Under that provision

it is only a person providing trans-port facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof that is entitled to prefer

an appeal to the prescribed authority within the prescribed time and in the prescribed manner. This was not apparently realised by the appellate

authority, the Central Road Traffic Board, which purported to allow the appeal by its order dated 25th June, 1947. It is this order that is sought to

be quashed and it runs as follows:

The appeal is allowed. The diversion granted to the respondent Messrs. Gandipan Bus Service is cancelled restoring the original route as before,

i.e., from Madras to Mahabalipuram.

Against this order, the petitioner preferred a petition to the Provincial Government but the Government by its order dated 17th December, 1947,

declined to interfere with the order of the Central Road Traffic Board. The petitioner thereupon filed the application before us for the issue of a writ

of certiorari to quash the order on the ground that the appeal by the second respondent was not competent and the Central Road Traffic Board,

the first respondent, acted without jurisdiction in pur-porting to allow the appeal of the second respondent and in cancelling the permission already

granted to him.

It was conceded on behalf of the Central Road Traffic Board, the first respondent, that the appeal by the second respondent was incompetent,

vide paragraph 8 of the counter-affidavit filed on behalf of the first respondent. Prima facie therefore the order of the first respondent was without

jurisdiction. But the learned Advocate-General on its behalf raised two objections to the issue of a writ by this Court. The first was an objection as

to the jurisdiction of this Court to issue the writ. This objection is based on the decision of the Judicial Committee in Ryots of Gara-bandho v.

Zamindar of Parlakimedi (1943) 2 M.L.J. 254 : L.R. 70 IndAp 129 : ILR (1944) Mad. 457 (P.C.), where it was held that the High Court at

Madras had no power to issue a writ of certiorari to quash the order of the Board of Revenue passed in certain settlement proceedings relating to

the estate of Parlakimedi in the Ganjam District. The learned Advocate-General contended that as the Regional Transport Authority which passed

the original order had its office outside the limits of the original jurisdiction of this Court and as the subject-matter and the parties were both outside

the said limits, this Court is not entitled to issue a writ of certiorari. The fact that the Central Road Traffic Board had its office in Madras was, he

contended, of no importance just as the fact that the Board of Revenue was located in the town of Madras did not matter in the Parlakimedi case1.

Before we decide whether the decision of the Judicial Committee in the Parlakimedi case1 has any application to the facts of the present case, it is

necessary to examine the ratio decidendi of that decision. In that case there was a dispute between the Zamin-dar of Parlakimedi and the ryots of

certain villages in his estate in respect of the settlement of rent of these villages. The Government of Madras had directed the Special Revenue

Officer of the district to settle a fair and equitable rent in respect of lands in the said villages and the officer made an order doubling the previous

rents. There was an appeal by the ryots to the Board of Revenue. A member of that Board sitting alone reversed the decision and allowed an

increase of rent of only 12-1/2 per cent. considering himself bound by proviso (b) of Clause (1) of Section 30 of the Madras Estates Land Act.

The Zamindar appealed by way of revision to the Collective Board of Revenue from the decision of the single member and the Collective Board of

Revenue decided by a majority that the single member was wrong in his assumption that Section 30, Clause (1) proviso (b) applied to the case.

The Collective Board however fixed the increase at 37-1/2 per cent. to be spread over a period of five years. The ryots applied for a writ of

certiorari to quash the order of the Collective Board of Revenue. It is clear therefore that in that case there was a dispute between the parties in

respect of rights governed by custom contract and statute and they were litigating their rights before Courts or judicial bodies appointed for the

purpose by statute. As the Judicial Committee point out, the parties, viz, the Zamindar on the one side and the ryots on the other, were not subject

to the original jurisdiction of the High Court and the estate of Parlakimedi lay in the north of the Province. The only ground on which the power of

the High Court to issue the writ could be based was the fact that the Board of Revenue was located in Madras and the order was made within the

town. But the position of the Board of Revenue was really that of a Court, though it is true that the Judicial Committee considered that it may not

be proper to describe it as a Court in a hierarchy of Revenue Courts. It was, they point out, an official body especially entrusted with particular

duties which include duties of a judicial character. In our opinion the rationale of the rule enunciated by their Lordships in the case is to be found in

two passages, one at page 494 and the other at page 497. At page 494, their Lordships say as follows:

If that Sovereign, or the company, in exercise of the dewani right committed by him to them, chose to appoint an individual or an executive

authority such as the Board of Revenue to give a decision between Indians in Ganjam upon particular matters of individual right, the Supreme

Court by the terms of Clause 8 of this charter could have no more right to interfere by certiorari with such a decision than in the case of the

decision of one of the company''s Courts.

At page 497, their Lordships observe thus:

Their Lordships think that the question of jurisdiction must be regarded as one of substance and that it would not have been within the competence

of the Supreme Court to claim jurisdiction over such a matter as the present by issuing certiorari to the Board of Revenue on the strength of its

location in the town. Such a view would give jurisdiction to the Supreme Court, in the matter of the settlement of rents for ryoti holdings in Ganjam

between parties not otherwise subject to its jurisdiction, which it would not have had over the Revenue Officer who dealt with the matter at first

instance.

Now coming to the facts of the present case there are no parties here litigating their individual rights before a Court or a judicial body entrusted

with power to adjudicate upon their individual rights. The right which the petitioner claims is a right which can only be granted by the authorities

prescribed under the Motor Vehicles Act. There can be no dispute as to such a right between private parties. The dispute can only be between the

party applying for, or objecting to, the grant of a permit. The position of the Regional Transport Authority and the Central Road Traffic Board in

this behalf is not to any extent similar to the position of the Special Officer or the Board of Revenue in the Parlakimedi case1. It there-fore

becomes a matter of importance that the body whose order is being challenged is located, and has passed the order, within the limits of the original

jurisdiction of this Court. Moreover, it cannot be said that no part of the subject-matter in question falls within the limits of the original jurisdiction

of this Court. Admittedly Madras is a terminus on the route. An order of injunction which may be passed by this Court in the exercise of its original

jurisdiction in a suit perperly constituted can certainly be enforced against the petitioner or the second respondent and their officers and servants

here in charge of the buses plying to and from Madras. It must be held that the transport business is being carried on at least in part in Madras

though it is also being carried on outside the limits of Madras. Applying the test laid down by their Lordships.of the Privy Council in the

Parlakimedi case1, we fail to see how this Court has no jurisdiction to issue a writ of certiorari to quash the order of the first respondent.

The learned Advocate-General drew our attention to the unreported decision of a Division Bench of this Court consisting of the late Chief

Justice Sir Lionel Leach and Lakshmana Rao, J., in C.M.P. No. 4452 of 1946, in which the learned Judges observed that this Court would have

no power to issue a writ to quash an order made by the Madras Hindu Religious Endowments Board appointing one of its officers to exercise all

the functions of a trustee of a temple situated in a village in the Cuddappah district pending the framing of a scheme.... The learned Judges. say:

The Hindu Religious Endowments Board functions in Madras, but the order which is now in question relates to a temple in the mofussil. The case

falls completely within the judgment of the Privy Council.

As we have already said the order now sought to be quashed does not relate to a. matter which entirely arises outside the limits of this Court''s

original jurisdiction.

The learned Advocate-General next contended that though the order of the first respondent could not be justified as an order on a valid appeal

presented by the second respondent, nevertheless it was a valid order passed in exercise of the powers conferred on the first respondent under

Rule 149 of the rules framed by the Local Government under the Motor Vehicles Act. We cannot accept this contention for two reasons. It does

not ''appear on the face of the record that the Central Road Traffic Board was purporting to exercise a power conferred on it by Rule 149. The

order was both in form and substance an order allowing an appeal by the second respondent. It is well established that it is not a good return to a

rule nisi for the issue of a writ of certiorari to state that the order is justified on facts not contained in the order. this Court cannot take notice of any

fact which does not appear upon the face of the order (vide Halsbury, Hailsham Edition, Volume IX, page 889 and The King v. Liston (1943) 2

M.L.J. 254 : L.R. 70 IndAp 129 : ILR (1944) Mad. 457 (P.C.). This excludes also any reference to a petition alleged to have been sent by the

villagers of Mahabalipuram to the Central Road Traffic Board protesting against the diversion permitted by the Regional Transport Authority.

But in our opinion there is a more formidable objection to the tenability of the contention of the learned Advocate-General. Rule 149 on which

reliance has been placed runs thus:

The Central Board may call for su�h reports and records from any Road Traffic Board and pass such order as it may deem fit. The Road Traffic

Board shall give effect to such orders.

According to the learned Advocate-General, this rule confers a power on the Central Board to interfere with and even set aside an order passed

by the Regional Transport Authority though no appeal had been preferred, under Rule 147 read with Section 64 of the Act. In the first place the

language of Rule 149 is, in our opinion, wholly inappropriate to confer appellate or revisional powers on the Central Board in respect of quasi

judicial orders passed by the Road Traffic Board or the Regional Transport Authority conferring valuable rights on parties. When the Courts or

quasi judicial administrative bodies have been given powers of revision, the language used by the Legislature has been quite different and has been

unambi-guous. It is sufficient to refer to Section 191 of the Sea Customs Act, Section 57 of the Madras Co-operative Societies Act and Sections

435 to 439 of the Criminal Procedure Code. Rule 149 does not empower the Central Board to call for any order passed by the Road Traffic

Board and to pass an order setting aside or modifying that order. Rule 149 to our mind appears to contemplate the passing of an original order by

the Central Board though such an order might be based upon reports and records obtained from any Road Traffic Board. The absence of any time

limit and of the procedure to be followed before final orders are passed also indicates that the power conferred under Rule 149 is not,a power to

revise orders passed by the Road Traffic Board affecting rights of parties.

The order of the first respondent therefore cannot be supported as an order passed in exercise of the powers conferred by Rule 149. It is not

necessary therefore to go into the question whether it will be open to the Provincial Government to make a rule conferring a power of revision on

the Central Board apart from the right of appeal conferred by the statute itself.

The learned Advocate-General raised a further objection based upon the petition preferred by the petitioner to the Provincial Government,

which had been dismissed. It was contended that this Court had no power to issue a writ of certiorari against the Provincial Government and in

effect this is what the petitioner seeks in this application. Mr Viswanatha Sastri on behalf of the petitioner contends that though it is true that the

petitioner approached the Government to set aside the order of the Central Road Traffic Board, there was no provision which gave him such a

right and the order of the Provincial Government cannot be said to be an order passed under any of the provisions of the rules validly framed under

the Act, The learned Advocate-General relied on Rule 150 as conferring a right on the Provincial Government to interfere in revision with any

order passed by the Central Board. Rule 150 runs thus:

The Road Traffic Board and the Central Board shall in all matters be subject to the orders of the Government and shall give effect to all orders

passed by the Government whether on appeal or otherwise.

Many of the remarks made by us as regards Rule 149 apply mutatis mutandis to this rule also. The rule in our opinion has no reference to orders

passed either by the Road Traffic Board or by the Central Board under powers given to them by statute or by rules affecting the rights of parties

and against which appeals are specifically provided to the prescribed authorities. The rule, as the marginal note indicates, only declares the power

of the Provincial Government to have superintendence over the two Boards. There may be matters in which the rights of parties are not concerned

and which may be dealt with by the Government and the Government might give directions, general or particular, as regards several matters dealt

with by the provisions of the Act in an administrative capacity. The language of Rule 150 is both inadequate and inappropriate to confer a right on

the Provincial Government to interfere in revision with orders of the Road Traffic Board and the Central Board in respect of which appeals are

specifically provided. Here again we are not called upon to decide whether the Provincial Government can make a valid rule conferring on

themselves a power of revision in respect to orders as to which there is nothing in the provisions of the Act to indicate that the Government have

such a power.

It therefore follows that the order of the first respondent was passed without jurisdiction and must be quashed. The rule is made absolute. The

petitioner will be entitled to his costs from the first respondent, advocate''s fee Rs. 200.

The argument in this case has prominently brought out the anomaly created by the ruling of the Judicial Committee in the Parlakimedi case,

particularly having regard to the recent tendency in this country as in other countries to invest quasi judicial and administrative bodies with large

powers to pass orders affecting interests of parties. It is a matter for consideration that persons within the limits of the original juris-diction of this

Court should have a remedy to approach this Court for the issue of a certiorari to quash illegal orders and orders made without jurisdiction, but

that in respect of similar orders relating to subject matter outside the original jurisdiction of this Court such a remedy should be denied to parties

outside its original jurisdiction. Whatever historical accidents might justify the ruling of the Judicial Committee in the Parlakimedi case, there is no

reason why the anomaly resulting there from should be allowed to continue. This is a matter however for the Legilsature and our province is only to

bring to their notice the anomaly and the hardship, caused to a great body of persons in the Province.