# New Prakash Transport Co. Ltd v. Suwarna Transport Co

- **Citation:** [1964] 7 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1963-10-29
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, J. c. SHAH. N. RAJAGOPALA AYYANGAR ANDS. M. S!KRI JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/new-prakash-transport-co-ltd-v-suwarna-transport-co-3103
- **Pages:** 16

## Headnote

Motor Vehicles Act, 1939 (4 of 1939), s. 43A (as inserted by
Madras Amending Act 20 of 1948} Madras G.O. No. 1298, elated
April 28, 1956-Government order prescribing the aware! of
marks-If direction to Regional Transport Authority in the discharge of its quasi-judicial function-Section 43A-Scope ·ofif authorises only administrative directions.
-
--, - ·-~~.
The appellant is a bus operator in the State of Madras. On
an invitation. for applications for the grant of two stage. carriage
permits he submitted his applications along with many others.
The State Transport Authority considered the merits of the application a.warding marks in accordance with the principles
prescribed by Madras G.O. No. 1298, dated April 28, 1956 issued
under s. 43A of the Motor Vehicles Act,,1939 inserted by the
Madras Amending Act 20 of 1948. The Transport Authority on
this basis granted the two permits to the appellant. Against this ·
crder a number of appeals were filed by some of the unsuccessful 2pplicants including respondents Nos. 2 and 3 in the present apl""al. The Appellate Tribunal re-allotted marks in accordznce v.rith the above G.0.- and respondents 2 and 3 having
secured the maximum number of marks were granted the permits. On the rejection of a petition under Art. 226 of the Constitution and after appealing without success to a Division Bench
the appellant applied for a certificate to appeal to this Court
wh'ch rejected. The present appeal was filed on special leave
granted by this Court.
'
It was contended on behalf of the appellant.before this Court
that since Madras G.O. No. 1298, dated April 28, 1956, purports
to issue direction to the Transport Authority in the discharge
of its quasi-judicial functions it is beyond the powers conferred
by s. 43A of the Motor Vehicles Act which authorises only the
issue of directions to the said authority in the discharge of its
administrative functions and therefore it is bad.
Held, (i) Section 43A confers power on the State Government
to issue orders and directions to the State Transport Authority
only in relation to its administrative functions.
M/s. Raman and Raman v. The State of Madras [1959] 2
S.C.R. 227, relied on.
_
(ii) It is well settled that ss. 47, 48, 57, 60, 64 and 64A deal
with quasi-judicial functions and when the transport authorities
are dealing with applications for permits and evaluating the
respective claims of the parties, the transport authorities are
discharging quasi-judicial functions and their orders are quasijudicial orders subject to the jurisdiction of the High ·court
under Art. 226.
· ·-
L/P(D) ISCI-1
1964
Marc;IJ 5"
2
SUPREME COURT REPORTS
[1964]
1964
New Prakash Transport Co. Ltd. v. Suwarna Transport Co.
-
Ltd. [1957] S.C.R., 98, M/s Raman and Raman Ltd. v. State of
B, R<1jaqopa/a Naidu Madras, [1959] 2 S.C.R. 227, B. Abdulla Rowtller v. Sta.te TransState TV.:..nspvrt
port Appellate Tribunal, Madras, A.LR. 1959, S.C. 896, relied
Appellate Tribunal on.
and Otlters
(iii) In interpreting s. 43A it is legitimate to assume that the
legislature intended to respect the basic and elementary postulate of the rule of law that in exercising their authority and discharging their quasi-judicial functions, the tribunals constituted
under the Act must be left absolutely free to deal with the matter according to their best judgement. It is of Jhe essence of
fair and objective administration of law that the decision of
judges or tribunals must be absolutely unfettered by any
extraneous guidance by the executive or administrative wing
of the State.
(iv) The impugned order is outside the purview of· s. 43A
inasmuch as it purports to give directions in respect of matters which have been entrusted to the tribunals constituted
'411
under the Act and which have to be dealt with by them in quasijudicial manner.
(v) The decision of the appellate Tribl!nal is solely based
on the provisions of the impugned order and since the said order
is invalid, the decision is also bad.
aVIL APPELLATE JURIS

## Text

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•
...
THE SUPREME COURT REPORTS
•
B. RAJAGOPALA NAIDU .
v • .
STATE TRANSPORT APPELLATE TRIBUNAL & ORS.
[P. B. GAJENDRAGADKAR, c. J.,. K. N. WANCHOO, J. c. SHAH.
N. RAJAGOPALA AYYANGAR ANDS. M. S!KRI JJ.J
Motor Vehicles Act, 1939 (4 of 1939), s. 43A (as inserted by
Madras Amending Act 20 of 1948} Madras G.O. No. 1298, elated
April 28, 1956-Government order prescribing the aware! of
marks-If direction to Regional Transport Authority in the discharge of its quasi-judicial function-Section 43A-Scope ·ofif authorises only administrative directions.
-
--, - ·-~~.
The appellant is a bus operator in the State of Madras. On
an invitation. for applications for the grant of two stage. carriage
permits he submitted his applications along with many others.
The State Transport Authority considered the merits of the application a.warding marks in accordance with the principles
prescribed by Madras G.O. No. 1298, dated April 28, 1956 issued
under s. 43A of the Motor Vehicles Act,,1939 inserted by the
Madras Amending Act 20 of 1948. The Transport Authority on
this basis granted the two permits to the appellant. Against this ·
crder a number of appeals were filed by some of the unsuccessful 2pplicants including respondents Nos. 2 and 3 in the present apl""al. The Appellate Tribunal re-allotted marks in accordznce v.rith the above G.0.- and respondents 2 and 3 having
secured the maximum number of marks were granted the permits. On the rejection of a petition under Art. 226 of the Constitution and after appealing without success to a Division Bench
the appellant applied for a certificate to appeal to this Court
wh'ch rejected. The present appeal was filed on special leave
granted by this Court.
'
It was contended on behalf of the appellant.before this Court
that since Madras G.O. No. 1298, dated April 28, 1956, purports
to issue direction to the Transport Authority in the discharge
of its quasi-judicial functions it is beyond the powers conferred
by s. 43A of the Motor Vehicles Act which authorises only the
issue of directions to the said authority in the discharge of its
administrative functions and therefore it is bad.
Held, (i) Section 43A confers power on the State Government
to issue orders and directions to the State Transport Authority
only in relation to its administrative functions.
M/s. Raman and Raman v. The State of Madras [1959] 2
S.C.R. 227, relied on.
_
(ii) It is well settled that ss. 47, 48, 57, 60, 64 and 64A deal
with quasi-judicial functions and when the transport authorities
are dealing with applications for permits and evaluating the
respective claims of the parties, the transport authorities are
discharging quasi-judicial functions and their orders are quasijudicial orders subject to the jurisdiction of the High ·court
under Art. 226.
· ·-
L/P(D) ISCI-1
1964
Marc;IJ 5"
2
SUPREME COURT REPORTS
[1964]
1964
New Prakash Transport Co. Ltd. v. Suwarna Transport Co.
-
Ltd. [1957] S.C.R., 98, M/s Raman and Raman Ltd. v. State of
B, R<1jaqopa/a Naidu Madras, [1959] 2 S.C.R. 227, B. Abdulla Rowtller v. Sta.te TransState TV.:..nspvrt
port Appellate Tribunal, Madras, A.LR. 1959, S.C. 896, relied
Appellate Tribunal on.
and Otlters
(iii) In interpreting s. 43A it is legitimate to assume that the
legislature intended to respect the basic and elementary postulate of the rule of law that in exercising their authority and discharging their quasi-judicial functions, the tribunals constituted
under the Act must be left absolutely free to deal with the matter according to their best judgement. It is of Jhe essence of
fair and objective administration of law that the decision of
judges or tribunals must be absolutely unfettered by any
extraneous guidance by the executive or administrative wing
of the State.
(iv) The impugned order is outside the purview of· s. 43A
inasmuch as it purports to give directions in respect of matters which have been entrusted to the tribunals constituted
'411
under the Act and which have to be dealt with by them in quasijudicial manner.
(v) The decision of the appellate Tribl!nal is solely based
on the provisions of the impugned order and since the said order
is invalid, the decision is also bad.
aVIL APPELLATE JURISDICTION: Civil Appeal No. 19 of
1964.
Appeal by special leave from the judgment and order
da,ted October 29, 1963, of the Madras 'High Court in Writ
~
Appeal No. 214 of 1962.
S. Mohan Kumaramagalam, M. N. Rangachari, R. K.
Garg, M. K. Ramamurthi, for the appellant.
R. Ganapathy Iyer, for respondents Nos. 2 and 3.
A. Ranganadham Chetty and A. V. Rangam, for respondent No. 4.
M. C. Seta/vad, N. C. Krishna Iyengar and O. C.
Mathur, for Intervener.
March 5, 1964. The judgment of the Court was delivered byGaj-1..agadkar, C.J.
GAJENDRAGADKAR, C.J .-The short but important point
of law which has been raistd for our decision in this appeal
by special leave is whether G.O. No. 1298 issued by the Government of Madras on April 28, 1956 in exercise of its powers
conferred bys. 43A of the Motor Vehicles Act, 1939 (Central
Act IV of I 939) (hereinafter called the Act) inserted by the
Madras Amending Act 20 af 1948, is valid. Mr . . Mohan
Kumaramangalam who appears for the appellant' contends
that the impugned Government order is invalid for the simple
reason that it is outside the purview of s. 43A. The impugned
order was issued as early as 1956 and since then, its validity
7 S.C.R.
SUPREME COURT REPORTS
3
has never been impeachedi in judicial proceedings. Litiga1964
tion in re~a_rd to the grant of permits under. the rel~- n. Rajagopala Naidu
vant prov1S1ons of, the Act has figured prommently m
v.
the Madras High Court in the form of writ petitions invoking }1atl1aTr~••g:,!,i
the said High Court's jurisdiction under Art. 226 of the ConsPP~.J'o1£:rs
titution and several aspects of the impugned order have come
.
-
to be examined. The echoes of such litigation have frequently G"J"14ragadkar, O.J.
been heard in this Court and this Court has had occasion to
deal with the impugned order, its character, its scope and its
effect; but on no occasion in the past, the validity of the order
appears to have been questioned. The legislative and judicial
background of the order and the course of judicial decisions
in regards to the points raised in the enforcement of this
order would prima facie and at the first blush suggest that
the attack against the validity of the order may not be wellfounded and that would tend to make the initial judicial response to the said challenge more hesitant and reluctant. But
Mr. Kumaramangalam contends tha.t s. 43A under which the
order purports to have been passed would clearly show that the
said order is outside the purview of the authority conferred
on the State Government and is therefore invalid. It is obvious
that if this contention is upheld, its impact on the administration of the system adopted in the State of Madras for
granting permits under the Act would be very great and so
though the question lies within a narrow compass, it needs to
be very carefully examined. The facts which lead to the present appeal conform to the usual pattern of the permit litigation in which the grant or refusal to grant a permit is challenged under the writ jurisdiction of the High Court under
Art. 226.
The appellant B. Rajagopala Naidu is a bus operator in
the State of Madras and he runs a number of buses on various
route5. On June 26, 1956, the State Transport Authority by
a notification invited applications for the grant of two stage
carriage permits on the route Madras to Krishnagiri. The
buses on this route were to be run as express service. The appellant and 117 bus operators including respondents 2 and 3
D. Rajabahar Mudaliar, proprietor of Sri Sambandamoorthy
Bus Service and K. H. Hanumantha Rao, proprietor of Jeevajyoti Bus Service respectively, submitted applications for th~
two permits in question. The State Transport Authority considered the said applications on the merits. In doing so, it
proceeded to award marks in accordance with the principles
prescribed by the impugned order and came to the conclusion
that the appellant satisfied the requirements enunciated by
the State Transport Authority for running an efficient bus service on this long route, and so, it granted the two permits to
the appellant on May 8, 1958.
LIP(D)tllCI-1(•)
4
SUPREME COURT REPORTS
[1964]
1964
Against this decision, 18 appeals were preferred by the
B. Rai6f!o-pala Naidu unsuccessful applicants incluqing respondents 2 and 3. All
v.
these appeals were heard together by the State Transport ApS'4kf'~~F' 1 pellate Tribunal, Madras in June 1959. It appears that before
Ap~~ Oth::a una the appeals were thus heard, the State Government had super-
-
seded the principles enunciated in the order in so far as they
Gajenaragadkar, O.J.related to the grant of stage carriage permits and had issued
another direction under s. 43A known
as G.O. 2265 on
August 9, 1958. Incidentally, it may be added that by this
order, different criteria had been prescribed for selection and
a different marking system had been devised. The Appellate
Tribunal considered the claims of the rival bus operators ant!
allotted marks in accordance with the principles laid down by
the earlier order. As a result, respondents 2 and 3 secured the
highest marks and their appeals were allowed, the order
under appeal was set aside and two permits were granted to
them. This order was passed on July 4, 1959.
The appellant then invoked the jurisdiction of the
Madras High Court under Art. 226 of the Constitution by
his writ petition No. 692 of 1959. In his writ petition the appellant challenged the validity of the order passed by the Appellate Tribunal on several grounds. One of them was that
the impugned order on which the decision of the Appellate
Tribunal was based. was invalid. This plea along with the
other contentions raised by the appellant failed and the learned Single Judge who heard his writ petition dismissed the
petition, on October 18, 1962. The appellant then challenged
the correctness of this ·decision by a Letters Patent Appeal
No.· 214 of 1962 before a Division Bench of the said High
Court. The Division Bench, however, agreed with the view
taken by the Single Judge and dismissed the Letters Patent
Appeal preferred by the appellant. The appellant then moved
the said High Court for leave, but failed to secure it, and that
brought him here with an application for special leave which
was granted on November 14, 1963. It is with this special leave
that the appellant has brought this appeal before us for final
disposal.
Before dealing with the points raised by the appellant,
it is necessary to consider the background of the impugned
order, and that takes us to the aecision of the Madras High
Court in · Sri Rama Vilas Service Ltd. v. The Road Traffic
Board, Madras, by its Secretary('). In that case. the appellant
had challenged the validity of a Government order No. 3898
which had been issued by the Madras Government on December 9, 1946. This order purported to direct the transport
authorities to issue only temporary permits as the Government intended to nationalise motor transport. Accordingly,
instruction No. 2 in the said order had provided that when
(1) (1948) 1 M.L.J. 85.
7 S.C.R.
SUPREME COURT REPORTS
5
applications were made for new routes or new timings in
1964
existing routes, then small units should be preferred to _old B. Rajagopala Naidu
ones. In accordance with this instruction, when the apphcav.
tion for permit made by the appellant, Sri R~ma Vilas A~';!11J;~';"lr:.!,i
Service was rejected, the order stated that it so reand Othera
jected in the interests of the public generally under
.
-
s. 47(l)(a) of the
Act. The
appellant preferred :ln GaJendragadkar,G.J.
appeal against the order to the Central Board namelr th~
Provincial Transport Authority which had been constituted
by the Government under s. 44 of the Act. His appeal failed
and so, he moved the Madras High Court under s. 45 of the
Specific Relief Act for an order directing the respondent-the
Road Traffic Board, Madras-to consider the application of
the appellant in accordance with the prnvisions of the Act and
the rules made thereunder for renewal of the permit for plying buses. The High Court held that G. 0. No. 3898 was in
direct conflict with the proviso to s. 58 sub-s. (2) of the Act,
and so, was invalid. This decision showed that there was no
authority or right in the State Government to issue· instructions such as were contained in the said Government order.
In reaching this decision, the High Court emphasised the fact
that the Central Transport Board and the Regional Transport Board were completely independent of the Government
except that they must observe the notifications made pursuant to s. 43 of the Act. It was conceded that if and when the
Government acted as an Appellate Tribunal, it had judicial
functions to discharge. But these functions did not include the
power to give orders to any Board which was seized of an
application for renewal of permits. That is how it was established by this decision that as the Act stood, the State Government had no authority to issue directions as to how applications for permits or their renewal should be dealt with by
the Tribunals constituted under the Act. This judgment was
pronounced on November 19, 1947.
As a result of this judgment, the Madras Legislature
amended the Central Act by Act XX of 1948 which came
into force on December 19, 1948. Amongst the amendments
made by this Act was the insertion of s. 43A with which we
are concerned in the present appeal.. This section clothed the
State Government with powers to issue certain directions and
orders. As we have already indicated, the point which we are·
considering in the present appeal is whether the impugned
order falls within the purview of the power and authority
conferred on the State Government by this section. We will
read this section later when we address ourselves to the question of its construction.
·
The amendment of the Central Act led to the next round
of controversy between the bus operators and the State Government and that resulted in the decision of the Madras High
6
SUPREME COURT REPORTS
[1964]
1961
Court in C.S.S. Motor Service Tenkasi v. The State of Madras
B.Ra;agopa1a Naidu and another('). In that case, the validity of several provisions
.
v.
of the Act including the provisions introduced by the Madras
~- Trapr!b'' 1Amendment Act were challenged. It will be recalled that at
"!'~~he,'.; una ·the time when this challenge was made, the Constitution had
. ·
~
come into force and the appellant C.S.S. Motor Service urged
Oajendmgadkar, O.J. before the High Court that under Art. 19(i)(g) it had a fundamental right to ply motor vehicles on the public pathways
and the impugned provisions of the Act invaded its aforesaid fundamental right and were not justified by Art. 19(6).
The High Court elaborately considered the first part of the
contention and it took the view, and we think rightly, that a
citizen has a fundamental right to ply motor vehicles on the
public pathways for hire or otherwise and that if any statutory provision purports or has the effect of abridging sμch
fundamental right, its validity would have to be judged under
the relevant clause of Art. 19. Proceeding to deal with the
dispute on this basis, the High Court examined the validity
of the several impugned provisions of the Act. In regard to
s. 43A, the High Court came to the conclusion that the said
section was valid thou_gh it took the precaution of adding that
the orders passed thereunder might be open to challenge as
unconstitutional. It is, however, necessary to emphasise that
the main reason which weighed with the High Court in upholding the validity of this section was tha( the High Court
was satisfied that the said section was "intended to clothe the
Government with authority to issue directions of an administrative character." Thus, s. 43A was held to be valid in this
case and the correctness of this conclusion is not disputed
before us. In other words, we are dealing with the appellant's
challenge against the validity of the impugned order on the
basis that s. 43A itself is valid. This judgment was pronounced on April 25, 1952.
Some years after this judgment was pronounced, the
impugned Government order was issued on April 28, 1956.
This order purported to issue instructions or directions for
the guidance of the Tribunals constituted under the Act. In
fact, it rclers to the judgment of the Madras High Court in
the case cf C.S.S. Motor Service. It would appear that the
Madras Government wanted to give effect to the said decision
by issuing appropriate directions under its authority derived
from s. 43A which was held to be valid. The impugned order
deals with five topics. The first topic has relation to the instructions which had to be borne in mind whilst scre~ning the
applicants who ask for permits. This part of the order provides
that the applicanis may be screened and disqualified on one or
more of the principles enunciated in els. I to 4 in that part.
The second part deals with the system of assigning marks to
(') A.L.R. (1953) Mad. 304.
•
J
7 S.C.R.
SUPREME COURT REPORTS
7
the several claimants, under four columns. In laying down these
1961
principles, the impugned order intended to secure precision inn. RajagopalaNaidu
the disposal of claims for permits and to enable quick consiv.
deration of the merits of such claimants. This part of the order,ASta1e
11 •• TrTanspb~·l
h
d .l h"
h
h
f
kppe~eriu,-
owever, ma e 1t c ear t at m cases w ere t e system o mar'·
and Othtrs
ing worked unfairly the Regional Transport Authority may
.
-
0 J
ignore the marks obtained for reasons to be stated. It is this GaJendragadkar, • •
part of the order which has introduced the marking system
whic!J has been the special feature of adjudication of claims
for permits in the State of Madras. These two parts are described as "A" in the Government order. Part 3 deals with the
variation or extension of routes granted under the permits.
Part 4 deals with the revision of timings and Part 5 bas reference to suspension or cancellation of permits. That in brief is
the nature of the directions issued by the impugned order.
After this order was issued and the Tribunals constituted
under the Act began to deal with applications for permits in
accordance with the principles prescribed by it, the decisiom
of the said Tribunals came to be frequently challenged before
the Madras High Court and these disputes have, often been
brought before this court as well. In these cases, the
character of the order passed by the Tribunal was examined,
the nature of the instructions issued by the impugned order
was considered and the rights of the parties aggrieved by the
quasi-judicial decisions of the tribunals also fell for discussion
and decision. A question which was often raised was whether
. it was open to a party aggrieved by the decision of the Tribunal to contend that the said decision was based either on
a misconstrui:tion of the impugned order or in contravention
of it. and the consensus of judicial opinion on this part of the
co:itroversy appears to be that the proceedings before
the
Tribunals
constituted
under
the· Act
are
quasijudicial proceedings and as such liable to be corrected under
Art. 226 of the Constitution. It also appears to be well established that the impugned order is not a statutory rule and has
therefore no force of law. It is an administrative or execu•
tive direction and it is binding on the tribunals; it does not,
however, confer any right on the citizen and that means, that
a citizen cannot be allowed to contend that a misconstruction
of the order or its contravention by any decision of the Tri·
bunal functioning under the Act should be corrected under
Art. 226.
In M Is Raman and Rainan Ltd. v. The State of Madras
and others('), this Court by a majority decision held thats. 43A
-0f the Act as amended by the Madras Amendment Act, 1948
must be given a restricted meaning and the jurisdicti0n it conferred on the State Government to issue orders alld directions
must be confined to administrative functions.
An ·order or
(') [1959] 2 S.C.R. 227.
8
SUPREME COURT REPORTS
[19641
1964
direction made thereunder by the State Government was conR • --,;; N 'd sequently denied the status of law regulating rights of parties.
aJlllJi
"' "and was treated as partaking of the character of an adminisBtate Pra••porl
trative order., Similarly, in R. Abdulla Rowther v. The State.
.it~~bunal Transport Appellate Tribunal, Madras and others(') this Court
-
.
held by a majority decision that the orders and directions
OaJ•ndrlllJadkar, O.J. issued under s. 43A were merely executive or administrative
in character and their breach, even if patent, would not justify
the issue of a. writ of certiorari.
It was also observed that
though the orders were executive and did not amount to statutory rules, they were rules binding on the transport authorities for whose guidance they have been issued, but that did
not confer any right on the citizen and so a plea that a
contravention of the orders should be corrected by the issue
of an appropriate writ was rejected. Such contravention, it
was held, might expose the Tribunal to the risk of disciplinary
or other appropriate action, but cannot entitle a citizen to
make a complaint under Art. 226. It is necessary to emphasise
that in both these cases, no argument was urged that the
impugned order was itse!Vinvalid and should have been ignored by the Tribunals exercising quasi-judicial authority under the
relevant provisions of the Act. The Court was no doubt called
upon to consider the character of the impugned order
and some of the reasons given in support of the conclusion
that the impugned order is administrative or executive seem
to suggest that the said order would. prima faeie, be inconsistent with the provisions of s. 43A which received a narrow
and limited construction from the court. Nevertheless, since the
point about the validity of the impugned order was not raised
before the court, this aspect of the question was not examined
and the discussion and decision proceeded on the basis that
the impugned order was valid. Now that the question has
been raised before us, it has become necessary to examine
the validity of the impugned order.
Before proceeding to examine the scope and effect of the
provisions of s. 43A, it is necessary to bear in mind two general considerations. The first broad consideration which is relevant has relation to the scheme of the Act in general and the
scheme of Ch. IV in particular. The Act consists of 10 chapters and deals mainly with administrative problems in relation to motor vehicles. Chapter II deals with licensing of
drivers of motor vehicles. Chapter IIA deals with licensing of
conductors of State carriages and Chapter 111 with registration of motor vehicles. Chapter IV fs concerned with the control of transport vehicles and in this chapter are included the
relevant provisions for the applications for grant of permits,
the consideration of those applications and other allied
topics. Chapter IV A includes the provisions relating to
(') A.I.R. (1959) S.C. 896.
•
. 7 S.C.R.
SUPRE.ME COURT REPORTS
9
..
State Transport Undertakings. Chapter V addresses itself t?
19e4
the construction, l!quipment and maintenance of motor veh1· B. RajagapaU. Naidu
cles, Chapter VI deals with the control of traffic, Chapter
v.
VII has reference to motor vehicles temporarily leaving or
State Transport
Appellate Tribunal
visiting India, Chapter VIII with the question of insurance
and Othera
of motor vehicles against third party risks, Chapter IX pres- , .
0 J
cribes offences, penalties and procedures to try the offences Ga1endragadkar, •
and Chapter X contains miscellaneous provisions .
This scheme shows that the hierarchy of transport a.uthorities contemplated by the relevant provisions of the Act is
dothed both with administrative and quasi-judicial functions
and powers. It is well settled that ss. 47, 48, 57, 60,
64 and 64A deal with quasi-judicial powers and functions. In
-0ther words, when applications are made for permits under
the relevant provisions of the Act and they are considered
on the merits, particularly in the light of the evaluation of the
claims of the respective parties, the transport authorities are
exercising quasi-judicial powers and are discharging quasijudicial functions, and so, orders passed by them in exercise
of those powers and in discharging those functions a,re quasijudicial orders which are subject to the jurisdiction of the High
Court under Art. 226, vide New Prakash Transport Co. Ltd.
v. New Suwarna Transport Co. Ltd.(') and MI s Raman and
Raman Ltd. v. The State of Madras and others(') and R.
Abdulla Rowther v. The State Transport Appellate Tribunal
Madras and others(') so that when we examine the question
about the validity of the impugned order, we cannot lose
sight of the fact that the impugned order is concerned with
matters which fall to be determined by the appropriate transport authorities in exercise of their quasi-judicial powers and
in discharge of their quasi-judicial functions.
The other broad consideration relevant in dealing with
the present controversy is that there are three sets of provisions under the Act which confer legislative, judicial and administrative powers respectively on the State Government.
Section 67 which confers on the State Government power to
make rules as to stage carriages and contract carriages and
s. 68 which confers power on the State Government to make
rules for the purposes of Ch.
IV are obviously legislative
powers, and in exercise of these powers, when the rules are
framed, they become statutory rules which have the force of
law: Naturally, the exercise of these legislative powers is controlled by the safeguard provided by s. 133 of the Act. This
latter section requires that when power is exercised by the
State Government to make rules, it is subject to the condition
that the rules must be previously published before they are
(') f1957] S.C.R. 98 p. 118.
(') (1959] 2 S.C.R. p. 227.
(') A.LR. (1959) S.C. 896.
------
•
10
SUPREME COURT REPORTS
[1964] ..
196'
made. That is the effect of s. 133(i). Sub-cl. (2) of s. 133 proB R . opala Naidu vides that all rules made under this Act shall be published in
• aJ•U v.
the Offici<tl Gazette after they are made and shall, unless some
State Tr.n'1""t 1 later date is appointed, come into force on the date of such
.11ppe1:;a1e0~,;:::•• publication. Clause 3 is important. It provides that all rules.
"
made under the Act shall be laid for not less than fourteen
GaJ•n<iragadkar, O.J. days before the appropriate Legislature as soon as possible
4
after they are made, and shall be· subject to such modifications:
as the appropriate Legislature may make during the session
in which they are so laid. So that if statutory rules are made·
by the Government in.exercise of legislative powers conferred
on it by ss. 67 and 68, they are subject to the control of the
appropriate legislature which can make changes or modifications in the said rules if it is thought necessary or expedient
to do so. Publication before the rules are made and publication after they are made also afford another statutory· safeguard in that behalf. That is the nature of the legislative
power conferred on the State Government.
Section 64A confers judicial power on the State Transport Authority, because the said authority is given revisionaI
jurisdiction to deal with orders therein specified, subject to
the limitations and conditions prescribed by the two provisos.
to the said section. This is a clear provision conferring judicial power on the State Transport Authority.
Along with the legislative and judicial powers. which have
thus been conferred, there is the administrative' power conferred on the State Government by s. 43A. Section 43A readsthus:
"The State Government may issue such orders ancf
directions of a general character as it may consider necessary, in respect of any matter relating to
road transport, to the State Transport Authority
or a Regional Transport Authority; and such
Transport Authority shall give effect to all such
orders and directions".
It is the construction of this section which is the basis:
of the challenge to the validity of the impugned rules in the
present appeal. It may be conceded that there are some· words
in the section which are against the construction for which
Mr. Kumaramangalam contends. The words "in respect of
any matter relating to road transport" are undoubtedly wide
enough to take in not merely administrative matters but also
matters which form the area of the exercise of quasi-judicial
authority by the Tribunals constituted under the Act.
Prima facie, there are no words of limitation irl this clause
and it would, therefore, be possible to take the view that these
are matters which are scrutinised by the appropriate authorities in exercising their quasi-judicial jurisdiction. Similarly,
the State Transport Authority and the Regional Transport
7 S.C.R.
HUPREME COURT REPORTS
11
Authority to which reference is made in this section are cloth1964
ed not only with administrative power but also with q~~si- B. RajQ{Jopola Naitlv
judicial jurisdiction so that reference to the two authontles
v.
.
and reference to any matter relating to road transport would la1ii:i:'T':l""na1.
indica.te that both administrative and quasi-judicial matters
Pi.;'nd IJIMr•"
<:ome within the sweep of s. 43A. .
1 th
"d
.
h. h
Gajendragadkar, O.J.
But there are. severa o er cons1 eratlons w 1c support
Mr. Kumaramangalam's construction. The first is the setting
and the context of the section. As we have already seen, this
section has been introduced by the Legislature in response to
the decision of the Madras High Court in C.S.S. Motor Service case(') and that would indicate that the Madras
Legislature intended to confer on the State Government power
to issue administrative orders or directions of a general character. Besides, the two preceding sections s. 42 and s. 43 and
s. 44 which follows support the argument that the field covered by s. 43A like that covered by ss. 42, 43 and 44 is administrative and does not include the area which is the subjectmatter of the exercise of quasi-judicial authority by the relevant Tribunals.
Then again, the use of the words 'orders and directions'
would not be appropriate in regard to matters which fall to
be considered by authorities exercising quasi-judicial powers;
These words would be appropriate if they have reference to
executive matters.
And lastly, the provision that the relevant transport
authority shall give effect to all orders and directions issued
under s. 43A would be clearly inappropriate if the instructions issued under the said section are meant for the guidance
of quasi-judicial bodies. If the direction is issued by the appropriate Government in exercise of its powers under s. 43A
and it is intended for the guidance of a tribunal discharging its
quasi-jwlicial functians, it is hardly necessary to say that the
authority shall give effect to such directions. Section 43A
being valid, if the orders and directions of a general character having the force of law can be issued within the scope of
the said section, then such orders tit directions would by ' them,-
selves be binding on the transport authorities for whose guida~ce they are made; and it would be superfluous to
make a speciJi<: provision that they are so binding. On the
other hand, if the orders and directions are in the nature of
adminiStrative orders and directions, they do not have the
force of statutory rules and ·cannot partake of the character
of provisions of law, and so, it may not be inappropriate to
provide that the said orders and directions shall be followed
by the appropriate tribunals. Therefore. it seems to us that
on a fair and reasonable construction of s. 43A; it ought to
be l>eld that the saia section authorises the State Government
( 1) IL.R. [1953] Mad. 304.
12
SUPREME COURT REPORTS
[1964}
:!!!_
to issue orders and directions of a general character only
B. RajagopalaNaidu in respect of administrative matters which fall to be· dealt with
S
v.
by the State Transport Authority or Regional
Transport
taie Trans]JOrt
h ·
d
h
1
· ·
f h A
·
h '
Appellate Tribunal Aut. o'.1ty 1;1n er t e. re evant prov1s10ns o t e
ct m t err
and 011,,,.,
admm1strat1ve capacity.
Gajendraga.dk<ir, C.J.
In reaching this conclusion, we have been influenced by
certain other considerations which are both relevant and material. In interpreting s. 43A, we think, it would be legitimate to 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 is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal
must be 'absolutely unfettered by any extraneous guidance by
the executive or administrative wing of the State. If the exercise of discretion conferred on a quasi-judicial tribunal is controlled by any such direction, that forges fetters on the
exercise of quasi-judicial authority and the presence of such
fetters would make the exercise of such authority completely
inconsistent with the well-accepted notion of judicial process. It is true that law can regulate the exercise of judicial
powers. It may indicate by specific provisions on what matters
the tribunals constituted by it should adjudicate. It may by
specific provisions lay down the principles which have to be
followed by the Tribunals in dealing with the said matters.
The· scope of the jurisdiction of the Tribunals constituted by
statute can well be reglilated by the statute and principles for
guidance of the said tribunals may also be prescribed subject
of course to the inevitable requirement that these provisions
do not contravene the fundamental rights guaranteed by the
Constitution. But what law and the provisions of law may
legitimately do cannot be permitted to be done by administrative or executive orders. This position is so well established
that we are reluctant to hold that in enacting s. 43A the
Madras Legislature intended to confer power on the State
Government to invade the domain of the exercise of judicial
power. In fact. if such had been the intention of the Madras
Legislature and had been the true effect of the provisions of
s. 43A, s. 43A itself would amount to an unreasonable con-·
travention of fundamental rights of citizens and may have to
be struck down as unconstitutional. That is why the Madras
High Court in dealing with the validity of s. 43A had expressly observed that what s. 43A purported to do wa~ to clothe
the Government with authority to issue directions of an ad·
ministrative character and nothing more. It is somewhat unfortunate that though judicial decisions have always emphasised this aspect of the matter, occasion did not arise so long
..
I ..
,
7 S.C.R.
SUPREME COURT REPORTS
13
to consider the validity of the Government order which on the
~~
construction suggested by the respondent would clearly invade B. Rajagopafa Naidu
the domain of quasi-judicial administration.
State ;,.~,.,pori
Appellate Tribu•al
There is another consideration which is also important.
and Oth•rs
If s. 43A authorises the State Government to issue directions Gajendragadkar,G.J.
or orders in that wide sense. s. 68 would become redundant
and safeguards so elaborately provided by s. 133 while the
State Government purports to exercise its authority under s.
68, would be meaningless. If orders and directions can be
issued by the State Government which are not distinguishable
from statutory rules, it is difficult to see why s. 68 would have
dealt with that topic separately and should have provided safeguards controlling the exercise of that power by s. 133.
It is likewise significant that the directions and orders
issued under s. 43A are not required to be published nor are
they required to be communicated to the parties whose claims
are affected by them. Proceedings before the Tribunals which
deal with the applications for permits are in the nature of quasijudicial proceedings and it would, indeed, be very strange if
the Tribunals are required to act upon executive orders or
directions issued under s. 43A without conferring on the citi-.
zens a right to know what those orders are and to see that they
are properly enforced. The very fact that these orders and directiom; have been consistently considerc;d by judicial decisions
as administrative or executive orders which do not confer
any right on the citizens emphatically brings out the true position that these orders and directions are not statutory rules
and cannot therefore seek to fetter the exercise of quasi-judicial powers conferred on the Tribunals which deal with applicaions for permits and other cognate matters.
It is, however, urged that the principles laid down in the
impugned order are sound principles and no challenge can
be made to the validity of the order when it is conceded that
the order enunciates very healthy and sound principles. This
order, it is argued, can be considered as expert opinion the assistance of which is afforded by the State Government to the
Tribunals dealing with the question of granting permits. We
are not impressed by this argument. It is not the function of
t~e e~ecut.ive to assi~t quasi-judicial Tribunals. by issuing
drrechons m the exercise of its powers c!onferred under s. 43A.
Besides, if s. 43A is valid and an order which is issued under
it does not fall outside its purview, it would be- open to the
State Government to issue a direction and require the Tribunal to foll.ow that direction unq~estionably, in every case. It is
true that m regard to the markmg system evolved by the impugned rule, liberty is left to the Tribunal not to adopt that
system for reasons to be recorded by it. This liberty in pr.ictice
SUPREME COURT REPORTS
[1964]
1964
may not mean much; but even theoretically, if the impugned
B. Rajagopala Naidu order is valid, nothing can prevent the State Government from
Sta•• ;;.,..'!!""
issuing another order requiring that the marking system presAppellai. Tnbuoal cribed by it shall always be followed. We have already seen
anti Others
that s. 43A itself provides that effect shall be given to the
Gajentlr<J{J(Ulkar o.J. orders issued under it, and so, if an order issued under s. 43A
'
itself were to prescribe that it shall be followed, it will have
'
to be followed by the Tribunal and no exception can be made .
in that behalf. Therefore, we cannot accept the argument
strongly pressed before us by Mr. Ganapathy Iyer on behalf
of respondent No. 1 that the validity of the order cannot be
challenged on the ground that the principles laid down by it
are sound and healthy. We have, therefore, come to the conclusion that the impugned order is outside the purview of s.
43A inasmuch as it purports to give directions in respect of
matters which have been entrusted to the Tribunals constituted under the Act and which have to be dealt with by these
Tribunals in a quasi-judicial manner. We cannot overlook the
fact that the validity of the Act particularly in reference to its
provisions · prescribing the grant and refusal of permits, has
been sustained substantially because this important function
has been left to the decision of the Tribunals constituted by
the Act and these Tribunals are required to function fairly
and objectively with a view to -exercise their powers quasijudicially. and so, any attempt to trespass on the jurisdiction
of these Tribunals must be held to be outside the purview of
8.