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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. Ratio |
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 section 43 of the Act. Ratio |
It was conceded that if and when the Government acted as an Appellate Tribunal, it had judicial functions to discharge. Ratio |
But these functions did not include the power to give orders to any Board which was seized of an application for renewal of permits. Ratio |
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. Ratio |
This judgment was pronounced on November 19, 1947. Ratio |
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. Ratio |
Amongst the amendments made by this Act was the insertion of section 43A with which we are concerned in the present appeal. Ratio |
This section clothed the State Government with powers to issue certain directions and orders. Ratio |
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. Ratio |
We will read this section later when we address ourselves to the question of its construction. Ratio |
The amendment of the Central Act led to the next round of controversy between the bus operators and the State Gov ernment and that resulted in the decision of the Madras High 6 Court in C.S.S. Motor Service Tenkasi vs The State of Madras and another(1). Ratio |
In that case, the validity of several provisions of the Act including the provisions introduced by the Madras Amendment Act were challenged. Ratio |
It will be recalled that at the time when this challenge was made, the Constitution had come into force and the appellant C.S.S. Motor Service urged before the High Court that under article 19(1)(g) it had a fundamental right to ply motor vehicles on the public pathways and the impugned provisions of the Act invaded it... |
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 such fundamental right,... |
Proceeding to deal with the dispute on this basis, the High Court examined the validity of the several impugned provisions of the Act. Ratio |
In regard to section 43A, the High Court came to the conclusion that the said section was valid though it took the precaution of adding that the orders passed thereunder might be open to challenge as unconstitutional. Ratio |
It is, however, necessary to emphasise that the main reason which weighed with the High Court in upholding the validity of this section was that 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, section 43A... |
In other words, we are dealing with the appellant 's challenge against the validity of the impugned order on the basis that section 43A itself is valid. Ratio |
This judgment was pronounced on April 25, 1952. Ratio |
Some years after this judgment was pronounced, the impugned Government order was issued on April 28, 1956. Ratio |
This order purported to issue instructions or directions for the guidance of the Tribunals constituted under the Act. Ratio |
In fact, it refers to the judgment of the Madras High Court in the case of C.S.S. Motor Service. Ratio |
It would appear that the Madras Government wanted to give effect to the said decision by issuing appropriate directions under its authority derived from section 43A which was held to be valid. Ratio |
The impugned order deals with five topics. Ratio |
The first topic has relation to the instructions which had to be borne in mind whilst screening the applicants who ask for permits. Ratio |
This part of the order provides that the applicants may be screened and disqualified on one or more of the principles enunciated in cls.1 to 4 in that part. Ratio |
The second part deals with the system of assigning marks to (1) A.L.R. 7 the several claimants, under four columns. Ratio |
In laying down these principles, the impugned order intended to secure precision in the disposal of claims for permits and to enable quick consideration of the merits of such claimants. Ratio |
This part of the order, however, made it clear that in cases where the system of marking worked unfairly the Regional Transport Authority may ignore the marks obtained for reasons to be stated. Ratio |
It is this ' part of the order which has introduced the marking system which has been the special feature of adjudication of claims for permits in the State of Madras. Ratio |
These two parts are described as "A." in the Government order. Ratio |
Part 3 deals with the variation, or extension of routes granted under the permits. Ratio |
Part 4 deals with the revision of timings and Part 5 has reference to suspension or cancellation of permits. Ratio |
That in brief is the nature of the directions issued by the impugned order. Ratio |
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 decisions ,of the said Tribunals came to be frequently challenged before the Madras High Court and these disputes have, often been brought before th... |
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. Ratio |
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 misconstruction of the impugned order or in contravention of it, and the consensus of judicial opinion on this part of the controversy appears to be that... |
It also appears to be well estab lished that the impugned order is not a statutory rule and has therefore no force of law. Ratio |
It is an administrative or executive 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 Tribunal functioning under the Act should b... |
In M/s Raman and Raman Ltd. vs The State of Madras and others(1), this Court by a majority decision held that section 43A of the Act as amended by the Madras Amendment Act, 1948 must be given a restricted meaning and the jurisdiction it conferred on the State Government to issue orders and directions must be confined t... |
An order or (1) 8 direction made thereunder by the State Government was con sequently denied the status of law regulating rights of parties. Ratio |
and was treated as partaking of the character of an administrative order. Ratio |
Similarly, in R. Abdulla Rowther vs The State Transport Appellete Tribunal, Madras and others(1) this Court held by a majority decision that the orders and directions issued under section 43A were merely executive or administrative in character and their breach, even if patent, would not justify the issue of a writ of ... |
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 is... |
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 article 226. Ratio |
It is necessary to emphasise that in both these cases no argument was urged that the impugned order was itself invalid and should have been ignored by the Tribunals exercising quasi judicial authority under the relevant provisions of the Act. Ratio |
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 facie, be incon sistent with the provisions of section 43A which received ... |
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. Ratio |
Now that the question has been raised before us, it has become necessary to examine the validity of the impugned order. Ratio |
Before proceeding to examine the scope and effect of the provisions of section 43A, it is necessary to bear in mind two general considerations. Ratio |
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. Ratio |
The Act consists of 10 chapters and deals mainly with administrative problems in relation to motor vehicles. STA |
Chapter 11 deals with licensing of drivers of motor vehicles. STA |
Chapter IIA deals with licensing of conductors of State carriages and Chapter III with registration of motor vehicles. STA |
Chapter IV is 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. STA |
Chapter IVA includes the provisions relating to (1) A.I.R. (1959) S.C. 896. 9 State Transport Undertakings. STA |
Chapter V addresses itself to the construction, equipment and maintenance of motor vehi cles, Chapter VI deals with the control of traffic, Chapter ' VII has reference to motor vehicles temporarily leaving or visiting India, Chapter VIII with the question of insurance of motor vehicles against third party risks, Chapte... |
This scheme shows that the hierarchy of transport autho rities contemplated by the relevant provisions of the Act is clothed both with administrative and quasi judicial functions and powers. Ratio |
It is well settled that sections 47, 48, 57, 60, 64 and 64A deal with quasi judicial powers and functions. Ratio |
In other 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 fu... |
The other broad consideration relevant in dealing with the present controversy is that there are three sets of provi sions under the Act which confer legislative, judicial and administrative powers respectively on the State Government. Ratio |
Section 67 which confers on the State Government power to make rules as to stage carriages and contract carriages and section 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 s... |
Naturally, the exercise of these legislative powers is controlled by the safeguard provided by section 133 of the Act. Ratio |
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 (1) p. 118.[1959] 2 S.C.R. p. 227.A.I.R. (1959) S.C. 896.10 made. Ratio |
That is the effect of section 133(i). Ratio |
Sub cl.(2) of section 133 provides that all rules made under this Act shall be published in the Official Gazette after they are made and shall, unless some later date, is appointed, come into force on the date of such publication. Ratio |
Clause 3 is important. Ratio |
It provides that all rules made under the Act shall be laid for not less than fourteen days before the appropriate Legislature as soon as possible 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. Ratio |
So that if statutory rules are made by the Government in exercise of legislative powers conferred on it by sections 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. Ratio |
Publication before the rules are made and publication after they are made also afford another statutory safeguard in that behalf. Ratio |
That is the nature of the legislative power conferred on the State Government. Ratio |
Section 64A confers judicial power on the State Transport Authority, because the said authority is given revisional jurisdiction to deal with orders therein specified, subject to the limitations and conditions prescribed by the two provisos to the said section. Ratio |
This is a clear provision conferring judicial power on the State Transport Authority. Ratio |
Along with the legislative and judicial powers which have thus been conferred, there is the administrative power con ferred on the State Government by section 43A. Section 43A reads thus: ,,The State Government may issue such orders and directions of a general character as it may consider necessary, in respect of any m... |
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. Ratio |
It may be conceded that there are some words in the section which are against the construction for which Mr. Kumaramangalam contends. Ratio |
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. Ratio |
Prima facie, there are no words of limitation in 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. Ratio |
Similarly, the State Transport Authority and the Regional Transport 11 Authority to which reference is made in this section are clothed not only with administrative power but also with quasijudicial jurisdiction so that reference to the two authorities and reference to any matter relating to road transport would indica... |
But there are several other considerations which support Mr. Kumaramangalam 's construction. Ratio |
The first is the setting and the context of the section. Ratio |
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(1) 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... |
Besides, the two preceding sections section 42 and section 43 and section 44 which follows support the argument that the field covered by section 43A like that covered by sections 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 ... |
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. Ratio |
These words would be appropriate if they have reference to executive matters. Ratio |
And lastly, the provision that the relevant transport authority shall give effect to all orders and directions issued under section 43A would be clearly inappropriate if the instructions issued under the said section are meant for the guidance of quasi judicial bodies. Ratio |
If the direction is issued by the appropriate Government in exercise of its powers under section 43A and it is intended for the guidance of a tribunal discharging its quasi judicial functions, it is hardly necessary to say that the authority shall give effect to such directions. Ratio |
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 or directions would by themselves be binding on the transport authorities for whose guidance they are made; and it would be superfluous to make a spec... |
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 that the said orders and directions shall be followed by the appropria... |
Therefore, it seems to us that on a fair and Leasonable construction of section 43A, it ought to be held that the said section authorises the State Government .R. 12 to issue orders and directions of a general character only tin respect of administrative matters which fall to be, dealt with by the State Transport Autho... |
In reaching this conclusion, we have been influenced by certain other considerations which are both relevant and material. Ratio |
In interpreting section 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 fre... |
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. Ratio |
If the exercise of discretion conferred on a quasi judicial tribunal is con trolled 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. Ratio |
It may indicate by specific provisions on what matters the tribunals constituted by it should adjudicate. Ratio |
It may by specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters. Ratio |
The. scope of the jurisdiction of the Tribunals constituted by statute can well be regulated 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 Constituti... |
But what law and the provisions of law may legitimately do cannot be permitted to be done by adminis trative or executive orders. Ratio |
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