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Judgment
T.C. Raghavan, J.—The common petitioner in these writ petitions, who is a transport operator impugns the three temporary permits granted by the Regional Transport Authority, Trivandrum, the second respondent in these writ petitions. On 22nd August 1968 the Regional Transport Authority met with four members present and an official member, the Executive Engineer, presided. The main contention urged by Mr. T.K. Kochu Thommen, the counsel of the petitioner, is that rule 153 of the Kerala Motor Vehicles Rules of 1961 framed by the Kerala Government under the Motor Vehicles Act is ultra vires. The argument of the counsel is that u/s 44 (2) of the Motor Vehicles Act the Regional Transport Authority shall consist of chairman who had had judicial experience and such other officials and non-officials, not being less than two, as the State Government may think fit, and that the Authority should be presided over by the chairman, the person who had had judicial experience; and that since in these cases the meeting of the Authority was presided over by an Executive Engineer who had had no judicial experience, the permits granted by the Authority at such meeting are vitiated and bad.
In support of this contention the counsel has drawn my attention to some decisions including a decision of the Supreme Court. The decision of the Supreme Court is The The United Commercial Bank Ltd. Vs. Their Workmen, . In that case the Supreme Court was considering the effect of some of the sections of the Industrial Disputes Act with reference to a Tribunal of three members appointed by the Government and a decision taken by it in the absence of one of its members. Considering the relevant sections like sections 7, 8, 15 and 16 of the Industrial Disputes Act and the Government Notification constituting the Tribunal, the Supreme Court held that the intention of the legislature in enacting the aforesaid sections and the intention of the Central Government who constituted the Tribunal was that all the members of the Tribunal should sit and decide: the absence of one member from the deliberations of the Tribunal would invalidate its finding. I do not go more into the facts of that case, since I am satisfied that what has to be done in a case like that is to gather the intention behind the constitution of the Tribunal and see whether the entire Tribunal should sit or not. Therefore, the Supreme Court case is only authority for the proposition that if the intention was that the entire Tribunal should sit, then a decision taken by some alone of its members is bad. The intention has to be gathered in each case from the relevant statute or the relevant provision of law under which the particular Tribunal is constituted.
The next decision is Kama Umi Isa Ammal Vs. Rama Kudumban and Others, . A Tribunal was constituted under the Madras Estates (Abolition and Conversion into Ryotwari) Act by the Government; and the Tribunal consisted of District Judge, a Subordinate Judge and a Revenue Divisional Officer. The District Judge was to preside. But, by a rule framed under the Act the quorum of the Tribunal was fixed at two, the rule providing that "not less than two members shall be necessary to constitute a sitting of the Tribunal". The Madras High Court held that this rule was bad, since the intention when the Tribunal was constituted was that all the three members should sit and the District Judge-member should preside. The rule, if it was good, would make it possible for any two members to constitute the Tribunal and would also do away with the provision that the District Judge-member should preside.
The next decision to which my attention has been drawn is Sheik Hussain and Sons Vs. State of Andhra Pradesh and Others, , a decision by a Full Bench. Satyanarayana Raju J., who spoke for the Full Bench, discussed the question referring to several decisions including the decision of the Supreme Court already referred to and came to the conclusion that u/s 44 (2) of the Motor Vehicles Act, as amended by Act 100 of 1956, a Tribunal, whose composition was not in accordance with the statutory requirements, had no jurisdiction to decide questions arising under the statute. In that case the appellate power was conferred by the State Government on the State Transport Authority and there were three members in that Tribunal. All the members did not sit to hear an appeal; and the reasoning of the Full Bench appears to be that since the State Transport Authority and the Regional Transport Authority were both constituted u/s 44 (2) and since the State Government conferred the appellate power on the former, the State Authority as contemplated by the Act should sit and hear appeals.
A decision which apparently takes a contrary view which appears at the first blush to support the contentions of the State and the respondents to whom the temporary permits were given) is also brought to my notice; and that is R. Veerayya and M. Siddalingaiah and Others Vs. State of Andhra Pradesh and Others, . The decision is by Jaganmohan Reddy J; and before the learned Judge the decision of the Full Bench of the same High Court already discussed does not appear to have been cited. This case was dealing with a question of the competence of the appellate authority constituted under sections 54 and 68 (2) (j) of the Act. The learned Judge held that since the State had power to constitute the appellate authority, the State had also power to prescribe a quorum for it by rules. I may reiterate that this decision was not dealing with the Regional Transport Authority or the State Transport Authority, but was only considering the constitution of the appellate authority. u/s 64, any person aggrieved by any one of the orders mentioned in the several clauses therein may appeal to the prescribed authority. Again, section 68(1) states that the State Government may make rules for the purpose of carrying into effect the provisions of the chapter in which the section appears. Sub-section 2 of the section then provides, inter alia, that the rules may, without prejudice to the generality of the language of sub-section 1, prescribe the authorities to whom, the time within which and the manner in which appeals may be made (clause j). These provisions make it abundantly clear that the Act itself has not prescribed the manner of constituting the appellate authority; and that the constitution of the appellate authority is left to the State Government to be prescribed by rules. If so, by rules the State Government could have made the appellate authority a singleman Tribunal: it could have also made the Tribunal consist of more members and prescribed a quorum. This was what was decided by Jaganmohan Reddy J,; and evidently, there was no need for referring to the Full Bench decision. It is also apparent that the position is different regarding the appellate authority. u/s 44 (2) of the Act the constitution of the Regional Transport Authority and the State Transport Authority is prescribed; and such constitution cannot be varied by means of a rule framed under the Act.
Now, I come to the impugned rule, rule 153, which says that no business shall be transacted at a meeting of the Regional Transport Authority unless there be present at such meeting at least two members and also unless one of the members so present is the chairman or an official. Section 44 (2) makes it mandatory that the Regional Transport Authority (I am not concerned with the State Transport Authority in these cases) shall consist of a chairman who had had judicial experience and such other officials and non-officials, not less than two. This means that the Authority should have at least three members, both official and non-official, the chairman being one who had had judicial experience. In other words, this signifies that a Regional Authority of not less than three members should be constituted; that it must have both official and non-official members; and that the person presiding must be one who had had judicial experience. All these must have been deliberately and wisely intended by the legislature. At the same time, the legislature has authorised the State Governments to increase the membership to any number above three. This I am pointing out with a purpose, because, at a stage of the arguments, Mr. Kochu-Thommen has contended that all the members of the Regional Transport Authority should sit and no quorum at all can be prescribed by rules. As I can see the intention of the legislature, the essentials contemplated are: one, that the Authority must have three members--the quorum should not be less; two, that there must be both official and non-official members taking part; and three, that the person presiding must be one who had had judicial experience. These essential and minimum requirements contemplated by the Motor Vehicles Act cannot be nullified by a rule framed under the Act.
It is argued by the learned Advocate General that under the rule-making powers conferred on the State Government by section 68 (2) (a) for fixing the period of appointment and the terms of appointment of and conduct of business by the Regional and the State Transport Authorities, the impugned rule fixing the quorum was rightly and validly promulgated. It is one thing to say that rules relating to the conduct of business of a Regional Transport Authority can be framed by the Government; and it is quite a different thing if by the said rules the provision contained in section 44 (2) of the Act itself laying down the minimum requirements-regarding the constitution of the Tribunal is nullified. Therefore, I hold that rule 153 is beyond the powers of the State Government to frame rules under the Act. (This decision might affect rule 154 as well, though the question does not directly arise in these cases.)
I shall now refer to two or three decisions of our High Court, which have also been brought to my notice. One of them is C. Devadas v. Regional Transport Authority, Calicut (1967 KLT 351), a Division Bench ruling; another is K. Thankachan v. Regional Transport Authority, Alleppey (1967 KLT 505); and the third is Managing Director, Messrs Ettumanoor Motors (Private) Ltd. v. Regional Transport Authority, Kottayam (O.P. No. 1 of 1962--unreported).
The unreported decision of Vaidialingam J. was the earliest. In that case a similar argument was adduced, namely, that all the members of the Tribunal should have sat and the chairman, who had had judicial experience, should have presided. Vaidialingam J. does not appear to have been inclined to accept this contention. The learned Judge thought that in view of rules 153 and 154 the contention could not have any force. If I were left with the decision of Vaidialingam J. alone, I would not have myself decided these cases in the manner I have indicated: I would have placed these cases before a Division Bench. But, I find that the decision of Vaidialingam J. was doubted in another case and that case was referred to a Division Bench. (The decision of the Division Bench is the last case I am considering). I also find that even if Vaidialingam J. took a different view, the view I have taken in these cases, still, the learned Judge could not have held that rule 153 was ultra vires, because in the case before Vaidialingam J. the State was not a party.
The next decision chronologically is the decision of Govindan Nair J. in K. Thankachan v. Regional Transport Authority, Alleppey (1967 KLT 605). What happened in that case was that the five members of the Regional Transport Authority sat and discussed a matter. The two non-official members disagreed with the three official members and they left the meeting, with the result that they did not sign the order. Ultimately, the order was signed by the three official members including, of course, the chairman; and my learned brother held that that order was bad. In the opinion of Govindan Nair J. since all the members of the Tribunal sat and discussed the matter, the decision should have also been taken by all the members of the Tribunal. Obviously, the Tribunal that sat had five members; and the decision must also have been taken by all the five members, I do not think that Govindan Nair J. has laid down in this case that if there are five members in the Tribunal, all of them must sit, in other words, no quorum can be fixed; there was no occasion for doing that either.
The last case in the Division Bench ruling which had to consider whether the decision of Vaidialingam J. was correct; and Govindan Nair J. was also a party to this. The decision of the Supreme Court and the decision of the Madras High Court cited before me by Mr. Kochu Thommen appear to have been cited before the Division Bench; and in addition the Division Bench ruling of the Andhra Pradesh High Court in G. Rama Reddi v. State of Andhra Pradesh (A.I.R. 1957 AP 14) was also cited. Gopalan Nambiyar J., who delivered the judgment of the Division Bench, has observed that the principle laid down in the first two decisions supported the contention of the petitioner in the case before them--a contention similar to the one before me. But, the Division Bench dismissed writ petition on the ground that rule 153 was not impugned before them. Before the Division Bench also, I may point out, rule 153 could not have been impugned, because the State Government was not impleaded. In view of the observations of the Division Bench and in view of the reasoning of the Supreme Court in the The United Commercial Bank Ltd. Vs. Their Workmen, , I do not think I need refer these cases to a lager bench on the ground that the view I am taking is different from the one taken by Vaidialingam J. I reiterate that in the case before Vaidialingam J. the State Government was not a party, so that Vaidialingam J. should not have held that rule 153 was ultra vires.
Thus, in my opinion, rule 153, as it now stands, is ultra vires the rule-making powers of the State. Still, I would point out that in these cases four members of the Tribunal sat; and there were both official and non-official members present. The defect was that the member who presided was not a person who had had judicial experience.
Regarding the first petition (O.P. No. 3710 of 1968) Mr. C.M. Kuruvilla, the counsel of the third respondent to whom the temporary permit therein was granted, brings to my notice that the temporary permit granted on 22nd August 1968 has been replaced by another temporary permit given by the Regional Transport Authority in a valid sitting. The counsel therefore argues that even if rule 153 is ultra vires, the temporary permit granted to the third respondent in this case cannot be impugned. I find that that position is correct. In the result, O.P. Nos. 3731 and 3733 of 1968 are allowed and the temporary permits therein (Ex. P-3 in both) are quashed. O.P. No. 3710 of 1968 is dismissed. No order regarding costs.