Swami Motor Transports (Private) Limited vs The Regional Transport Authority and Others

Veeraswami, J.—This petition is to quash an order of the second Respondent Tribunal agreeing with the Regional Transport Authority,

Thanjavur, granting a, variation of the route Melacauvery to Sakkottai as Melacauvery to Natchiarkoil. The first order was, dated May 6, 1959

and the Tribunal''s order was, dated June 8, 1960. The ground on which the Petitioner asked for a rule is that both the Regional Transport

Authority as well as the Tribunal were influenced by G.O. Ms. No. 547 (Home), dated February 25, 1959, directing an extension of the route.

The Petitioner claims that neither of the authorities below was entitled to consider this order of the Government and that, in any case, the

Government''s order itself was improper and illegal.

The variation, for the first time, would appear to have been asked for as early as October 1957 by the third Respondent. That application was

rejected on March 14, 1958 by the Regional Transport Authority on the ground that the sector was well served. Against that order the third

Respondent filed a revision petition before the State Transport Authority-This petition was finally disposed on June 26, 1958, the State Transport

Authority agreeing with the view of the Regional Transport Authority that there was no need for variation of the route. In the meantime two

members of the local legislature filed petitions on April 9, 1958 before the Governments or extension of the route. On April 3, 1958 the Regional

Transport Authority for some reason not obvious, invited applications for grant of permit from Kumbakonam bus stand to Natchiarkoil. This was

adjourned from time to time and was finally rejected on June 26, 1959, on the ground that on May 6, 1959 the Regional Transport Authority had

granted the variation asked for by the third Respondent. On the petition filed by the members of the legislature the Government asked on May 9,

1958 for the remarks of the Transports Commissioner. This Officer reported in his remarks that there was no need for the variation asked for. No

orders would appear to have been passed on the petition of the members of the legislature apparently because it was brought to the notice of the

Government that the matter was pending in revision before the State Transport Authority.

On October 1, 1958, the third Respondent moved the Government for an order u/s 43-A of the Motor Vehicles Act directing a variation of the

route. In this petition the third Respondent did not invite the attention of the Government to the order of the State Transport Appellate Tribunal of

June 26, 1958, dismissing the revision petition relating to the very matter. On this petition again the Government asked for the remarks of the

Transport Commissioner, who replied on December 8, 1958, drawing the attention of the Government to the fact that the State Transport

Authority had dismissed the revision agreeing with the Regional Transport Authority that no variation was necessary. He also mentioned in it of his

own view that there was no need at all for the variation. The Government, however, considered that the variation should be ordered in public

interest and made its order, dated February 25, 1959. This is how the order reads:

It has been brought to the notice of the Government that the bus running between Melacauvery to Sakkottai in Kumbakonam Town (Route No. 3

of Town Service) passes through several streets in the town. This route is a circuitous one and consequently the bus is never full and it is not utilised

by the public to its fullest advantage. It has been represented that if this route No. 3 Melacauvery to Sakkottai is extended to Natchiarkoil it will

serve the public of Kumbakonam to go to Natchiarkoil and its environs without break of journey. Similarly it will be useful to the villagers of those

areas to go to the heart of the town, bazaar, hospitals, temples, banks, etc., without break of journey.

Government have examined the representation in consultation with the Transport Commissioner, Madras, and with reference to the conditions

specified in Section 47 of the Motor Vehicles Act, 1939. They are satisfied that there is need for a direct bus service between Melacauvery and

Natchiarkoil and that the extension of the route No. 3, Melacauvery to Sakkottai, as Melacauvery to Natchiarkoil via Sakkottai will benefit the

residents of the area cited resulting in saving of time and convenience to the passengers arising from journeys not being broken.

Therefore, in exercise of the powers conferred by Section 43-A(2) of the Motor Vehicles Act, 1939 (Central Act IV of 1939), the Governor of

Madras hereby directs the Regional Transport Authority, Thanjavur, to extend the route Melacauvery to Sakkottai as Melacauvery to Natchiarkoil

via Sakkottai.

This order was received by the Regional Transport Authority on February 27, 1959. That Authority reported to the Government on March 9,

1959 that action to implement the variation had been taken on February 28, 1959. In that communication the Regional Transport Authority added

that the third Respondent had applied for grant of variation as ordered in the Government Order and that the application was notified u/s 57(3) of

the Motor Vehicles Act on February 28, 1959. On May 6, 1959 the Regional Transport Authority passed the following order:

Parties heard. The variation will provide through facility from Melacauvery to Natchiarkoil without curtailment of the existing facilities. The variation

is hence in the public interest. The applications granted.

The Petitioner, who was one of the objectors, filed a revision petition against that order. The Appellate Tribunal dismissed the revision petition

and it did so on the view which may be set out in its own words:

In my opinion, the Government had jurisdiction to pass the order Ms. No. 547, Home, dated 25th February 1959 and that is an end of the matter

in the sense that their opinion that it was necessary to grant the variation in the interests of the public cannot be canvassed before the Regional

Transport Authority and the Regional Authority which are creatures under the Motor Vehicles Act and are bound to obey the lawful orders issued

u/s 43-A(2). Even apart from this, it seems to me that the reasons given by the Government in their order, if I may say so with respect, commend

itself to me.

The Tribunal then proceeded to practically set out the reasons which weighed with the Government in making the said order. The Tribunal wound

up by saying that in that view it dismissed the revision petition. It is this order which is sought to be quashed in this petition.

The first ground of the Petitioner is that it is evident from the order of the Tribunal that it was very much influenced by the order of the

Government directing variation and that the Tribunal had practically surrendered its quasi-judicial functions and was merely led by the Government

order. It is urged that the Government order was entirely irrelevant to the matter under consideration by the Regional Transport Authority and the

Tribunal and that they should have decided the question of variation quite independently of the Government order. The second ground of the

Petitioner is that the Government order was improper and illegal because it, in effect, directed the quasi-judicial authorities to grant the extension

and that too in favour of a particular permit holder.

In considering these grounds it is first necessary to examine the relative statutory provisions. A stage carriage permit is granted u/s 48 of the

Motor Vehicles Act subject to certain conditions, and Sub-section (2) of the section, before its omission by Act III of 1964, stated that every

stage carriage permit should be expressed to be valid only for a specified route or routes or for a specified area. Clause (xxi) of Sub-section (3)

grants power to the Regional Transport Authority, after giving notice of not less than one month, to vary the conditions of the permit, or to attach to

the permit further conditions. Sub-section (2), as I said, having been dropped by Act III of 1964, it introduced Clause (i) after renumbering the

present Clause (i) as Clause (i-a) in Sub-section (3) to the effect that the stage carriage or stage carriages shall be used only on a specified route or

routes or in a specified area. The effect of this is that a route becomes a condition of a permit. Clause (xxi) of Sub-section (3) has also been

substituted by the new Act, and as substituted, the clause gives power to the Regional Transport Authority, after giving notice of not less than one

month, to vary, extend or curtail the route or routes or the area specified in the permit. This clause has a proviso, but, for the present purpose it

need not be noticed.

The grant of a permit has to be made after considering the matters provided u/s 47(1) and following the procedure laid down in Section 57.

Variation of a condition of a permit by inclusion of a new route or routes or a new area, or, by increasing the number of services above the

specified maximum, is provided for by Sub-section (8) of Section 57 which directs that for granting the variation the procedure applicable to grant

of a permit should be followed, treating the application for a variation as an application for the grant of a new permit. This sub-section was

construed by a Full Bench of this Court in Natesa v. Dhanapal Bus Service (Private) Ltd. ILR (1964) 1 Mad. 288 (F.B.) as not empowering

variation of the condition by extension or alteration of a route.

By Section 4 of Act No. III of 1964, in Sub-section (8) of Section 57 after the words by the inclusion of a new route or routes or a new area

are inserted the words or by the variation, extension or curtailment of the route or routes or the area specified in the permit. Section 5 of the

amending Act makes special provision in regard to existing stage carriage permits and validation of certain proceedings and order granting variation

under the old Sub-section (8) of Section 57. The effect of this amending Act appears to be that route is made a condition of permit and power is

given to the Regional Transport Authority to alter the condition suo motu by variation, extension or curtailment of the route or routes or the area.

This power u/s 48 is not judicial in character and the only condition for its exercise is that the Regional Transport Authority should give notice of

not less than one month. The Regional Transport Authority is also given power to vary the conditions of a permit on an application by varying,

extending or curtailing the route or routes or the area specified in the permit. But this power is a quasi-judicial one and has to be exercised by

following the procedure prescribed for disposal of an application for grant of a new permit. Sub-section (2) of Section 43-A which was introduced

by the Motor Vehicles (Madras Amendment) Act, 1954 gives power to the State Government to direct, on a consideration of the matters set forth

in Sub-section (1) of Section 47, the Regional Transport Authority or the State Transport Authority to open any new route or to extend an existing

route or to permit additional stage carriages to be put, or to reduce the number of stage carriages on any specified route. This power obviously is

administrative and the only condition of its exercise is that before making a direction the State Government should consider the matters mentioned

in Sub-section (1) of Section 47. The sub-section does not contemplate that before making such a direction the Government should act in a quasi-

judicial capacity, and, follow the procedure pertaining thereto, including giving of notices to interested persons, considering the representations and

hearing operators and other interested persons. Further, it may be noticed that Sub-section (2) is only concerned with a general direction to open a

new route or to extend an existing route, and, is not related to variation of conditions of permit which is the subject of Section 48(3) and Section

57(8). Section 57(8) applies only to applications for variation of conditions of permit, and while considering such applications, the Regional

Transport Authority necessarily has to decide with reference to the matters u/s 47(1) whether inclusion of a new route or extension of an existing

route will be called for in public interest. The power under Sub-section (8) of Section 57 to grant a new route or extension is necessarily incidental

to a disposal of an application for variation of a condition in the permit. If at all, it is this aspect which differentiates the power given to the

Government under Sub-section (2) of Section 43-A and the power under Sub-section (8) of Section 57, it may be remembered that the subject of

motor transport is a concurrent subject. Though at first sight Sub-section (2) of Section 43-A which is a State enactment, may appear to overlap

to a certain extent and impinge upon Sub-section (8) of Section 67, which is a Central enactment under the concurrent power, a closer scrutiny will

show that the two powers do not trench upon each other, and, they were meant to be exercised in different circumstances. Sub-section (2) of

Section 43-A has nothing to do with permits or conditions of permit. It is concerned only with the question of opening a new route or extension of

an existing route or permitting additional stage carriages on any specified routes. Sub-section (8) of Section 57, on the ether hand, is only related to

variation of conditions of permit and that too on an application and not with the question of inclusion of a new route or extension of an existing

route in general. It is on this ground that this Court held in Writ Appeal No. 106 of 1962 that there is no repugnancy between the two sub-

sections. No doubt one of the grounds on which this Court so held is no longer available, but, the decision is still good on the other grounds

mentioned therein.

It is in the light of the foregoing provisions the question whether a Government order made under Sub-section (2) of Section 43-A could or

Could not be taken into consideration by the Regional Transport Authority, acting u/s 57(8), has to be considered. When once it is clear from the

statutory provisions noticed above that the power u/s 57(8) is a quasi-judicial one and has to be exercised only in the light of Section 47(1) and

following the procedure contemplated by Section 57, it will be plain that it is the duty of the Regional Transport Authority to apply its mind to the

question of variation in the light of the record and merits brought before it by means of and through the procedure prescribed by Section. 67. In

other words, the Regional Transport Authority has to come to a decision by following the quad judicial procedure prescribed and, applying its own

mine to the matters u/s 47(1) and the evidence placed before it. Whether a particular condition in a permit should be varied in public interest is not

and cannot be affected by any order u/s 43-A(2). Whether a new route should be opened or an existing route should be extended has to be

considered by the Regional Transport Authority independently of any order made u/s 43-A(2) though the Regional Transport Authority would do

so only as incidental to its deciding whether a condition in a permit should be permitted to be varied by opening a new route or extending an

existing route. That being the case, a Government order u/s 43-A(2) will be entirely irrelevant to a consideration by the Regional Transport

Authority of an application u/s 57(8). That is the view which a Full Bench of this Court hold in Swami Motor Transport Limited v. Raman and

Raman Limited ILR (1961) mad. 110, 121 (F.B.). This is what was observed in that case:

The first question which falls for decision is whether a consideration of the Government Order by the State Transport Appellate Tribunal was

improper. We agree with Rajagopalan J., that it was. The Tribunal was invested with appellate and revisional powers in respect of orders by the

Regional Transport Authority. It was not a mere administrative or executive body. It should only deal with what may be generally described as

evidence on record"" though it may be that the Tribunal is not governed strictly by the sections of the Indian Evidence Act. The Government Order

cannot be said to be a piece of evidence.

In that case the Tribunal''s order was quashed on the ground that it attached importance to the fact that the Government had taken a particular

view of the question of extending a route which the Tribunal had to decide for itself.

In the instant case, the passage which I have extracted from the Tribunal''s order would unmistakably show that it was very much influenced by

the Government Order directing extension. In fact, the Tribunal went to the extent of stating that once a Government Order had been made

extending a route u/s 43-A(2) there was an end of the matter and that the Tribunal, as a creature of the statute was bound to follow the order of

the Government. This is a total misdirection as to its jurisdiction and only shows that the Tribunal had abdicated its quasi-judicial functions and

surrendered its judgment for the view of the Government in its order above referred to. On this ground the order of the Tribunal should be set

aside.

On that view the second ground of the Petitioner does not necessarily fall to be considered. But even here I am satisfied that the Government

Order was improper. It is true, unlike in the case of the Full Bench, when the Government made its order, dated February 25, 1959 there was

here no application for variation of a permit or appeal relating to that matter pending. But, in my opinion, that is not the only test. Once a quasi-

judicial authority decides u/s 57(8) that a variation of a condition of a permit by way of an extension of an existing route was not called for in public

interest, or there was no need for it, that order deserved respect at the hands of the Government, and I would even say, will be binding on it in a

sense. The schemes of Section 43-A(2) and Section 57(8) will, I think justify the view that once the quasi-judicial authority which is vested with

the jurisdiction expresses the view that an extension is not called for, the Government cannot disregard such an order and consider itself free to

come to its own decision on the question. What Sub-section (2) of Section 43-A states is that the direction by the Government is to be given to the

Regional Transport Authority or the State Transport Authority. It is true that such an authority is administratively subordinate to the Government;

but, it should be remembered that when the very authority has in its quasi-judicial function decided that there should be no extension of a route as

there was no need for it, it is not contemplated by Sub-section (2) of Section 43-A that the State Government could ignore that decision of the

quasi-judicial authority, and, in exercise of its administrative power under that section, impose its own view on that very authority. I am, therefore,

inclined to think that the State Government cannot exercise its powers u/s 43-A(2) when an application for variation of a condition of a permit by

inclusion of a new route or extension of an existing route or an appeal arising therefrom is pending before a competent quasi-judicial authority and

also when such authority has applied its mind and decided against inclusion of a new route or extension of an existing route. I think this view will

also effectuate harmonious working of the powers u/s 43-A(2) and Section 57(8).

In the present case the Government, when it made its order, dated February 25, 1959, was well apprised of the earlier orders of the Regional

Transport Authority as well as the State Transport Authority that no extension of the route was required in public interest. That being the case, in

my opinion, the Government order was not only not proper but in excess of its powers u/s 43-A(2).

The result is, the impugned order of the Tribunal is hereby quashed. The Tribunal will dispose of the appeal afresh without in any way taking

into account, or being influenced by the order of the Government.

The petition is allowed with costs against the third Respondent.