# SHARIF AHMED & ORS v. REGIONAL TRANSPORT AUTHORITY, MEERUT & ORS

- **Citation:** [1978] 1 S.C.R. 761
- **Court:** Supreme Court of India
- **Decided:** 1977-10-31
- **Case number:** Civil Appeal Nos. 1214 and '- 1292 of 1977
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sharif-ahmed-ors-v-regional-transport-authority-meerut-ors-7317
- **Pages:** 9

## Headnote

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761
SHARIF AHMED & ORS.
v.
REGIONAL TRANSPORT AUTHORITY, MEERUT & ORS.
October 31, 1977
lP. K. GOSWAMI AND N. L. UNTWALIA, JJ.]
Motor Vehicles (U.P. A1nend111e11t) Act, 1972-Grant of stage-carriage pern1its by Appellate Tribunal-Retrospective change in law before actual issuance
of pern1its, lvhether nullifies the f,?rant-Appeal lies only against grant, and not
issuance of per111its.
In 1972, purporting to do away with the limit on the grant of stage-carriage
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permits, imposed bys. 47(c) of the Motor Vehicles Act, 1939, the U. P. Govern-
<:
n1ent promulgated the U.P. Motor Vehicles Amendment Ordinance (No. 9 of
r
1972) replaced by the Motor Vehicles (U.P. Amendment) Act,
1972. Under
-s. 43-A(2) of the amended Act the State Government issued a notification dated
~larch 30, 1972, directing the Transport Authorities to grant stage carriage permits to all eligible applicants. The constitutional validity of the amended }a\V
and the notification was upheld by the Supreme Cotirt in Hans Raj Kellar &
Ors. v. State of U.P. & Ors. [1975] 2 SCR 916. The State Transport Arp,llatc
Tribunal, thereafter, allowed fifty pending appeals and granted pern1its to cill
the appellants. Pursuant to the Appellate Tribunal's order of grant, the Regional
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Transport Authority was to issue the grantees permits, on the fulfilment cf certain conditions within a given time. The conditions were duly fulfilled but the
actual issue of permits was kept pending due to the Appellate Tribunal's order
being challenged through a writ petition in the High Court. The petition wa~
dismissed, but meanwhile the law was retrospectively an1end~d.
A question arose before this Court whether the retrospective .change in
la\~
had nu1lified the Appellate Tribunars order?
Allowing the appeal the Cou11.
HELD : ( 1) The applications for grant of permits were finally disposed of,
and permits \\'ere granted by the order of the Appellate Tribunal, what remained
pending was a mere ministerial act of issuing the permits, to be performed by the
Regional Transport Authority or, its delegate, on the applicants' complying with
the terms of the order, within the tin1e granted by the Appellate Tribunal. The
order of the Tribunal, when made, was legal and with jurisdiction, The retrospective change in law had not the effect of nullifying the order. [766 G-H}
Tile Conunissioner of lncon1e-tax, Bihar & Orissa v. Mahara;a Pratap Singli
Bal(adrtr of Gidliaur [1961] 2 SCR 760, distinguished.
Obiter dictuni :
Retrospective change in law cannot justify allowing the wrong to continue.
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The injustice done must be rectified. The issuance of a writ of mandamus
would not have the effect of directing the Regional Transport Authority to do
something contrary to the present law, but of merely asking it to obey the valid
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order of the Appellate Tribunal which has not been rendered void on any ground
whatsoever. [768 E-F]
'Judicial Review of Administrative Action' 3rd Edn.p. 59 by S. A.de Sn1ith.
referred to.
(2) An appeal u/s. 64 of the Motor Vehicles Act, 1939, lies only against the
grant of permit, and not against the order issuing a permit made in pursuance of
the order granting the permit. Issuance of the permit is only a ministerial act
necessarily following the grant of permit. [765 G]
H
Kundur Rudrappa v. The Mysore Rerenue Appellate
Tribunal and Or\.
[1976] l S.C.R. 188, followed.
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SUPREME COURT REPORTS
[[978] [ S.C.R.

## Text

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'
761
SHARIF AHMED & ORS.
v.
REGIONAL TRANSPORT AUTHORITY, MEERUT & ORS.
October 31, 1977
lP. K. GOSWAMI AND N. L. UNTWALIA, JJ.]
Motor Vehicles (U.P. A1nend111e11t) Act, 1972-Grant of stage-carriage pern1its by Appellate Tribunal-Retrospective change in law before actual issuance
of pern1its, lvhether nullifies the f,?rant-Appeal lies only against grant, and not
issuance of per111its.
In 1972, purporting to do away with the limit on the grant of stage-carriage
A
B
permits, imposed bys. 47(c) of the Motor Vehicles Act, 1939, the U. P. Govern-
<:
n1ent promulgated the U.P. Motor Vehicles Amendment Ordinance (No. 9 of
r
1972) replaced by the Motor Vehicles (U.P. Amendment) Act,
1972. Under
-s. 43-A(2) of the amended Act the State Government issued a notification dated
~larch 30, 1972, directing the Transport Authorities to grant stage carriage permits to all eligible applicants. The constitutional validity of the amended }a\V
and the notification was upheld by the Supreme Cotirt in Hans Raj Kellar &
Ors. v. State of U.P. & Ors. [1975] 2 SCR 916. The State Transport Arp,llatc
Tribunal, thereafter, allowed fifty pending appeals and granted pern1its to cill
the appellants. Pursuant to the Appellate Tribunal's order of grant, the Regional
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Transport Authority was to issue the grantees permits, on the fulfilment cf certain conditions within a given time. The conditions were duly fulfilled but the
actual issue of permits was kept pending due to the Appellate Tribunal's order
being challenged through a writ petition in the High Court. The petition wa~
dismissed, but meanwhile the law was retrospectively an1end~d.
A question arose before this Court whether the retrospective .change in
la\~
had nu1lified the Appellate Tribunars order?
Allowing the appeal the Cou11.
HELD : ( 1) The applications for grant of permits were finally disposed of,
and permits \\'ere granted by the order of the Appellate Tribunal, what remained
pending was a mere ministerial act of issuing the permits, to be performed by the
Regional Transport Authority or, its delegate, on the applicants' complying with
the terms of the order, within the tin1e granted by the Appellate Tribunal. The
order of the Tribunal, when made, was legal and with jurisdiction, The retrospective change in law had not the effect of nullifying the order. [766 G-H}
Tile Conunissioner of lncon1e-tax, Bihar & Orissa v. Mahara;a Pratap Singli
Bal(adrtr of Gidliaur [1961] 2 SCR 760, distinguished.
Obiter dictuni :
Retrospective change in law cannot justify allowing the wrong to continue.
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The injustice done must be rectified. The issuance of a writ of mandamus
would not have the effect of directing the Regional Transport Authority to do
something contrary to the present law, but of merely asking it to obey the valid
G
order of the Appellate Tribunal which has not been rendered void on any ground
whatsoever. [768 E-F]
'Judicial Review of Administrative Action' 3rd Edn.p. 59 by S. A.de Sn1ith.
referred to.
(2) An appeal u/s. 64 of the Motor Vehicles Act, 1939, lies only against the
grant of permit, and not against the order issuing a permit made in pursuance of
the order granting the permit. Issuance of the permit is only a ministerial act
necessarily following the grant of permit. [765 G]
H
Kundur Rudrappa v. The Mysore Rerenue Appellate
Tribunal and Or\.
[1976] l S.C.R. 188, followed.
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762
SUPREME COURT REPORTS
[[978] [ S.C.R.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
1214 and
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1292 of 1977.
Appeals by Special Leave from the Jndgmcnt and Order dated
31-3-1976 of the Allahabad High Court in Second Appeal Nos. 64
and 63 of 1976 respectively and
Civil Appeal No. 1293 of 1977
Appeal by Special Leave from the Judgment and Order dated
26-4-76 of the Allahabad High Court in Civil Misc. Writ No. 652/76
and
Civil Appeal No. 1342 of 1977
.
Appeal by Special Leave from the Judgment and Order dated
29-4-77 of the Allahabad High Court in Civil Misc. Writ No. 11466/
75 and
Civil Appeal Nos. 1487, 1341 and 1412 of 1977
Appeals by Special Leave from the Judgment and Order dated
6-10-76 of the Allahabad High Court in S.A. Nos. 160. 182 & 183/
76.
A. K. Sen (in CA 1214/77) M/s. J. P. Goyal & Shreepal Singh ·
for the Appellants in CA Nos. 1214. 1292, 1293 & 1342/77.
S. N. Kacker, Sol. Genl., (in CA 1214/77) O. P. Rana & M. V.
E
Goswami, Advs. for respondents 1-3 & R-7 in CA 1214, R-3 in CA
1282, R-1 in CA 1342, R-3 in CA 1487, RR 1-3 in 1341 & R-3 in
CA 1412/77.
•
B. Sen, (Oper. R. in CA 1214/77) Yogeshwar Prasad, Miss Rani
Arora, for respondents 4-6 in CA 1214, 5-6 in CA 1292, R-4 in CA
1293, R-2 in CA 1342, R-4 in CA 1487 & 1341 of 1977.
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Miss Rani Arora, for R-4 in CA 1412/77.
S. Markandcya, Adv. and Miss Chitra Bhadri, for the Appellant in
CA 1487, 1341 & 1412/77.
,
M/s. R. K. Garg, S. C. Ag,,rwala & V. J. Francis, Advs. for
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Caveator in CA 1293 /77.
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The Judgment of the Court· was delivered by
UNTWALTA, J.-In this batch of seven appeals by special leave the
points involved arc identical. It is a glaring example of unnecessary
litigation between the various stage C'affiage operators, which could
have been avoided if the State Government of Uttar Pradesh would
not have come out with varying laws and
oscillating policies.
The
facts of all the appeals are simifar and common except in regard to
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SHARIF AHMED v. R.T.A. (Untwalia, !.)
763
the parties, routes in question, and some other consequential details.
We proceed to state the facts from Civil Appeal No. 1214 of 1977'
only.
Under section 47(3) of the Motor Vehicles Act, 1939-hereinafter to be referred to as the Central Act the Regional Transport
Authority, Meerut had limited the number of stuge carriage permits
to be thirty only for the route Meerut-Rohta-Sinali-Baraut. In or
about the year 1971 an aavertisement was made calling for the applications to fill up eight yacancies, as twenty-two permits out of the
limit of thirty having been already granted ·were operative and in force.
In October, 1971 the·Regional Transport Authority granted
eight
permits to the respondents in one appeal or the other.
Fifty applicants who were not granted permits by the Regional Transport Authority filed appeals before the State Trnnsport Appellate Tribunal (for
brevity, hereinafter, the Appellate Tribunal) under section 64 of the
Central Act.
While the said appeals were pending, The U.P. Motor
Vehicles Amendment Ordinance No. 9 of 1972 was promulgated on
March 16, 1972.
It was replaced by The Motor Vehicles
(Uttar
Pradesh Amendment) Act, 1972-U.P. Act No. 25 of 1972-hereinafter called the U.P. Act of 1972. By the Ordinance followed by
the Act aforesaid, section 43A was inserted in the Central Act after
section 43 authorising the State Government to "issue such directions
of a general character as it may consider necessary or expedient in
the public interest in irespect of any matter relating to road transport"
to the various Transport Authorities.
The object of the Act \'<'as to
do away with the limit on the number of permits to be granted for
<tage carriages.
Sub-section(2) of section 43-A, in particular, empowered the State Government in public interest to issue a direction
by a notification in the Gazzette to grant permits to all eligible applicants except in respect of routes or areas for which schemes had been
published under Section 68C of the Central Act. Some amendments·
were brought about in section 47 of the Central Act.
But for the
purposes of these appeals the one to be pin-pointed is the deletion of
sub-section (3) from section 47, the consequence of which was to
delimit the number of permits to be granted for a particular route.
On March 30, 1972, a notification was issued by the State Government under Section 43-A(2) of the U.P. Act of 1972 directing the
Transport Authorities to grant stage carriage permits to all the
eligible applicants.
Some of the stage carriage permit holders on
various route's in U.P., including some of the respondents, challenged
the validity of the U.P. Ordinan~e followed by the U.P. Act of 1972
and the notifiC'ation dated March 30, 1972 by filing writ petitions in
the Allahabad High Court. The High Court dismissed their writ petitions.
They came up in appeal to this Court.
The appeals' were
dismissed and the constitutional validity of the impugned law and
the notification was upheld by a Bench of four learned Judges including one of us (Goswami J.). The decision of this Court is reported
in Hans Raj Kehar & Ors. v. The State of U.P. and Ors.(')
The decision of this Court was handed down on December 4, 1974.
The appeals remained pending before the Appellate Tribunal because of
0) [1975]Z-S.C.R. 916~A.T.R. 1975S.C.
389.
12-951SCl/77
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SUPREME COURT REPORTS
[1978) 1 S.C.R.
this first round of litigation.
Eventually the appeals were allowed on
February 19, 1975 by the Appellate Tribunal and each one of the fifty
applicants was granted one permit over and above the eight already
granted by the Regional Transport Authority. Pursuant to the order of
grant made by the Appellate Tribunal, permits were to be issued by the
Regional Transport Authority if the grantee produced a fit vehicle,
meaning thereby roadworthy vehicle, registered in his name by the 31st
March, 1975 and if by the said date he filed an affidavit sworn by him
before the Regional Transport Authority to the effect that he had not
been convicted of any criminal offence under the Indian Penal Code
during the preceding five years.
The Appellate Tribunal, in its order,
had further made it clear that the time fixed by it for the implementation
of the order of grant w~s under no circumstances to be extended and if
any of the applicants failed to comply with it, sanction of the permit
in favour of the defaulting applicant was to stand automatically revoked.
The appellants, however, complied with the order and fulfilled the conditions of the grant within time.
But before permits could be actually
issued, another round of litigation started at the instance of Rama Kant
Ahluwalia and others who had been granted eight permits by the Regional Transport Authority as per its Resolution passed on October 29,.
1971.
They challenged the order of the Appellate Tribunal by filing
a writ petition in the High Court which was summarily dismissed on
February 27, 1975.
Three more writ petitiolll filed by some' other
operators challenging the very same order of ilie Appellate Tribunal
were also dismissed after hearing on September 10, 1975.
It may be
stated here at this stage that permits were not actually issued even
though the High Court had vacated the stay orders sometime in June or
July, 1975.
After dismissal of the writ petitions by the High Court, came another notification issued by the State Government on September 24,
1975 under section 43-A o[ the U.P. Act of 1972 t>fOposing to change
their policy of granting permits to all eligible applicants.
In the main,
we shall be concerned in these appeals with the !rue meaning and effect
of this notification the relevant portions of which will be quoted hereinafter.
The notification of September 24, 1975 was considered by the
Regional Transport Authority as putting a bar to the issuance of the
permits.
The ltPpellailts, therefore, filed Civil Miscellaneous Writ
Petition No. 12238 oJf 1975 in the High Court challenging the notification as also the U.P. Ordinance 35 of 1975 which had been promulgated in the meantime on November 12, 1975.
They prayed for an
order or a writ of mandamus directing the Regional Transport Authority
to issue the permits pursuant to the order dated 19.2.1975 of the Appellate Tribunal.
The writ petition was dismissed by a learned single
Jud~e of the High Court on February 12, 1976.
The appellants
went up in appeal under the letters patent.
The appeals were
dismissed by a Division Bench on March 31, 1976.
Hence these appeals.
U.P. Ordinance 35 of 1975 followed by Ordiriance 9 of 1976 pronrnloated on February 16, 1976 was replaced by U. P. Amendment Act
15 ~f 1976 which came into force on May 1, 1976.
Although the
Division Bench of the High Court has not rested its judgment, and in
'our opinion rightly, upon the Ordinance and U.P. Act of 1976, the
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SHARIF AHMED v. R.T.A. ( Untwalia, !.)
7 6 5
learned single Judge had done so.
We shall briefly refer to the change
A
of law brouglit about by the said Ordinance and the Act because the
learned Solicitor General appearing for the State of Uttar Pradesh endeavoured to make some point out of it.
So did the other counsel
appearing for the operator respondents.
·•
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The main question, however, which falls for our determination in
these appeals is as to whether the Regional Transport Authority failed
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to do its legal duty in refusing to issue the penuits pursuant to the order
of the Appellate Tribunal in view of the notification of the State Government issued on September 24, 1975 under section 43-A of the U.P. Act
of 1972 and whether the High Court was right in not granting the writ
asked for by the appellants.
The Appellate Tribunal in its order dated the 19th February, 1975
following the notification of the State Government issued on March
30, 1972 had ordered the grant of permits to all the applicants.
The
relevant words of the order are as follows :-
"It would, therefore, appear to be reasonable that these appellants may also be granted one permit each on this route, if
they can produce a fit vehicle within the given time and they
can satisfy the RTA as to their antecedents, by means of an
affidavit."
All the fifty appeals were allowed.
The order of the Regional Trans-·
port Authority was set aside and the operative portion of the order
was made in terms as mentioned below :-
"Without disturbing the grant of permit in favour of the res-
;iondents, these 50 appellants will also be granted one regular
stage carriage permit each on this route, provided they produce a fit vehicle duly registered in their own name by 31st
March, 1975, and during this period they also file their own
personal affidavits before the RTA to this effect that they have
not been convicted of any criminal offence under I.P.C.
during the last 5 years.
This time for placing the vehicle
and for filing the affidavits, will not be extended on any
grounds, and 'if the compliance as above is not made in the
given time, the sanction of the permit in favour of the defaulting appellants will automatically stand revoked."
In Kwidur Rudrappa v. The Mysore Revenue Appellate Tribunal &
Ors(') . It was held by a Division Bench of this Court, to which both
of us were parties, that appeal under section 64 of the Central Act lies
only against the grant of permit and not against the order issuing a
permit made in pursuance of the order granting the permit.
"Issuance
of the permit is only a ministerial act necessarily following the grant of
the permit" was the distinction pointed out at page 190.
Then came the change of policy notification involving the parties
in further litigation.
The Preamble of this notification dated September 24, 1975 states that the State Government is of opinion that
the policy of granting such permits to all eligible applicants requires
(I) [197611 S.C.R. 188.
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SUPREME COURT REPORTS
[1978] 1 S.C.R.
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review and since such review was likely to take sometime in the meantime it w_as necessary to stay "the disposal of all pending applications
for permits or entertainment of fresh applications." The notification
dated the 30th March, 1972 was rescinded with immediate effect by
clause (I) and thereafter clause (2) provided :
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'·The co11sideration of applications for stage carriage permits
pending with any Transport Authority shall stand postponed
until further directions are issued in this behalf by the State
Government.''
The High
Court thought that since permits has not been
issued,
they
could not be issued because of
the
notification
dated September 24,
1975.
Although not in form,
in
substance,
the
High
Court thought that
the eflect of the order
ot the Appellate Tribunal was to remand the cases to the Regional
Transport Authority for granting permits to the appellants on being
satisfie_d that the vehicles put by them were roadworthy and that their
antecedents were not undesirable.
In our judgment the High Court
bas fallen into an error in this regard.
All the parties were agreed
i>efore us that clause (2) of the notification had not the effect of recall-
,,.g, revoking or cancelling the permits which had been granted and
issued pursuant to the notification dated 30.3.1972.
It was,
also,
beyond any debate or doubt that if the applications for the grant of
stage carriage permits were pending with any Transport Authority when
the notification was issued it stood postponed until further directions
· were issued in this behalf by the State Government.
But the scope
for litigation and argument in these cases cropped up because they
did not clearly and precisely fall in one line or the other.
If on the
special facts of these cases consideration of the applications could be
taken to be pending with any Transport Authority, then they had
to
remain pending un ti! further directions were issued.
But if, on the
other hand, on a correct appreciation of the legal position the applications had been finally disposed of by the order of the Appellate Tribunal
and they were not pending for any consideration then they did not
stand postponed and permits had lo be issued pursuant to the order of
the Appellate Tribunal.
The Regional Transport Authority had no
discretion or power in the matter to dispose of the applications one way
or the other.
To our mind the problem docs not present much difficulty. The
applications filed by the appellants for grant of permits to them were
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rejected by the Regional Transport Authority in October, 1971. They
were finally disposed of and permits were granted to them by the
order of the Appellate Tribunal made on 19-2-1975.
The consideration of the applications for grant of permits was no longer pending. after the said order.
What ,remained pending was
a
mere
ministerial act to be performed by the Regional Trans port Authority or by any delegate of that authority in accordance with Rule
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-44A of the
U.P. Motor Vehicles Rnles, 1940.
According to the
terms of the order of the Appellate Tribunal, nothing substantial or
unsubstantial was to be decided by the Regional Transport Authority in connection with the grant of permits. The Regional Transport
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SHARIF AHMED v. RT.A. ( Untwalia, !.)
767
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Authority could not say that it refused to grant the permit on one
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ground or the other.
What was left to be done by it was only to find
out whether a particular applicant had complied with the terms of
the order and within the time granted by the Appellate Tribunal. If
the terms were not complied with by the specified tim~ the grant stood
revoked not because the Regional Transport Authority could revoke
it but because the Appellate Tribunal had specified it to be so.
As
already stated, all the applicants had complied with the terms of the
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Appellate order within time, actual issuance of the permits could not
be done becanse of the stay orders made by the High Court in the
eaP!ier writ
petitions.
In sum
and
substance,
therefore,
the appellants became entitled to
the
issuance
of
the
permits
in their favour by 31st March, 1975. It is difficult to understand as
to
in what sense
their applications
remained
pending after 31st
March,
1975 and how did they remain pending even
in
the reC
motest sense of the term after the vacation of the st>ay order by the
High Court and the dismissal of the writ petitions
on
the
10th
of September, 1975.
When the notification dated September 24,
197 5 was issued the position was absolutely clear that nothing in any
sense was pending except that in the physical sense a paper containing the permit was not actually issued.
Clause (2) of the said
notification was not meant to cover nor did it cover a case of this
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kind.
The Regional Transport Authority failed in its legal duty in
not implementing the order of the Appellate Tribunal and issuing the
permits as a result the·reof.
It was, therefore, just and proper to
grant the writ of mandamus as asked for by the appellants.
We may now briefly deal with the additional points urged by the
Solicitor General and M/s B. Sen and Yogeshwar Prasad.
For the
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purpose of appreciating some of those points it would suffice to refer
to the provisions of U.P. Act 15 of 1976 which were almost
in
identical terms to the two Ordinances which had preceded it. Section
21 of this Act amended section 43-A with retrospective effect. The
effect of this was to bring into force section 4 7 ( 3) of the Central Act
and with retrospective effect. Sub-section (3) of section 21, however,
provided : "Any direction under sub-section (!) may be issued with
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Tetrospective effect." Then sub-section (5) is in the following terms :-
"Where any direction is issued under sub-section ( 1)
with retrospective effect then -
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(a) any Transport Authority or the State Transport
Appellate Tribunal may review any order passed
earlier by it with a view to making it conform to such
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directions, and may for that purpose cancel any
permit already issued ;
(b) Any Transport Authority may apply to the High
Court for review of any order passed by such Court
earlier with a v;ew to enabling such Authority to
comply with such direction."
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The argument on behalf of the State was
that the order of the
Appellate Tribunal became illegal as being against the law which
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[1978] 1 S.C.R.
was by a legal fiction, made to come into force by its retro-active
action when the said order was passed.
Reliance was placed
upon
the decision of this Court in The Commissioner of Income Tax,
Bihar & Orissa v. Maharaja Pratap Singh Bahadur of Gidhaur('). In
our opinion the argument is devoid of any substance.
There was
nothing in the Ordinance or the U.P. Act of 1976 to make the order
of the Tribunal illegal.
The order when. made was legal and with
jurisdiction. The retrospective change in law had not the effect of
nullifying the order. It is to be further emphasised that if the order
was complete and final, in the sense we have explained above, then
two formalities had to be gone into in order to get rid of that order.
Firstly, a special direction had to be issued under ·sub-section (1).
No snch direction issued was brought to our notice.
Secondly, the
procedure of review had to be followed as provided for in sub-section
(5) of section 21 of the Amending Act of 1976. In Maharaja Pratap
Singh's case (supra) the amendment of the law with retrospective
effect h'ad made the; proceeding void ab inltio.
The law was retrospectively amended during the pendency of the appeals before
the Appellate Assistant Commissioner.
Any order made in such a
proceeding was, therefore, held to be void.
The ratio of that case is
wholly inapplicable for nullifying the order of the Appellate Tribunal.
ll was then submitted by learned counsel for the
parties
that
because of the change in law in 1976, this Court should not for the
sake of justice allow these appeals filed on grant of special leave under
Article 136 of the Constitution and issue a writ of mandamus which
will have the effect of directing the Regional Transport Authority
to do something contrary to the present law.
In our opinion, there
is no substance in this point either.
The High Court refused to issue
the writ on a misapprehension of the correct position in 1'aw and by
misreading the order of the Appellate Tribunal and the notification
dated September 24, 1975.
Retrospective change in law brought
about in 1976 cannot justify allowing the wrong to continue.
The
injustice done to, the appellants must be rectified.
The result of the
writ wiU not be tantamount to asking the Regional Transport Authority to do something which will run contrary to section 47 (3) or the
proviso to section 57(3) of the Central Act. It would be merely
asking the Regional Transport Authority to obey the valid order of
the Appellate Tribunal which has not been rendered void
on
any
ground whatsoever.
Mr.
A. K. Sen, learned counsel for the appellants
drew
our
attention to what S.A. de Smith has pointed out at page 59 of the
third edition of his well-known treaty "Judicial Review of Administrative Action'' :-
"It may describe any duty, the discharge
of
which
involves no element of discretion or independent judgment.
Since an order of mandamus will issue to compel the performance of a ministerial act, and since, moreover, wrongful refusal to carry out a ministerial duty may give rise to
(!) [1961] 2 S.C.R. 760.
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SHARIF AHMED V. R.T.A. (Untwalia, J.)
769
liability in tort, it is often of practical importance to deterA
mine whether discretion is present in the performance of a
statutory function.
The cases on mandamus show, however,
that the presence of a minor discretionary element is not
enough to deter the courts from characterising a function as
ministerial."
We think that the Regional Transport Authority, pursuant to the
B
order of the Appellate Tribunal, had merely to perform a ministerial
duty and the minor discretionary element given to it for finding out
whether the terms of the Appellate Order had been complied with or
not is not enough to deter the Courts from characterising the function as ministerial.
On the facts and in the circumsronces of this
case by a writ of mandamus the said authority must be directed to
perform its function.
C
For the reasons stated above, we allow these appeals and direct
tbe Regional Transport Authority or Authorities, as the case may be,
to implement the orders of the Appellate Tribunal, issue the permits
to the appellants in all the cases.
We would, however, like to make
it clear that permits were to be issued for a period of three years only.
Temporary permits were issued to the appellants or some of them
D
from time to time in pursuance of the interim order made either by
the High Court or by this Court. The total period of such temporary
permits in the case of any of the appellants must be deducted and
adjusted as in the present situation of the law it would be just to do
so, from the period of three years. In the circumstances, we make
no order as to costs in any of the appeals.
M.R.
Appeals allowed.
-E