(1.) THE common petitioner in these writ petitions, who is a transport operator impugns the three temporary permits granted by the regional Transport Authority, Trivandrum, the second respondent in these writ petitions. On 22nd August 1968 the Regional transport Authority met with four members present and an official member, the executive Engineer, presided. THE main contention urged by Mr. T. K. . Kochu thommen, the counsel of the petitioner, is that R. 153 of the Kerala Motor vehicles Rules of 1961 framed by the Kerala Government under the Motor Vehicles act is ultra vires. THE argument of the counsel is that under S. 44 (2) of the motor Vehicles Act the Regional Transport Authority shall consist of a chairman who had had judicial experience and such other officials and non-officials, not being less than two, as the State Government may think fit, and that the authority should be presided over by the chairman, the person who had had judicial experience; and that since in these cases the meeting of the Authority was presided over by an Executive Engineer who had had no judicial experience, the permits granted by the Authority at such meeting are vitiated and bad.
(2.) IN support of this contention the counsel has drawn my attention to some decisions including a decision of the Supreme Court. The decision of the Supreme Court is The United Commercial Bank Ltd. v. Their workmen (AIR. 1951 SC. 230 ). IN that case the Supreme Court was considering the effect of some of the sections of the INdustrial Disputes Act with reference to a Tribunal of three members appointed by the Government and a decision taken by it in the absence of one of its members. Considering the relevant sections like s. 7, 8. 15 and 16 of the INdustrial Disputes Act and the Government Notification constituting the Tribunal, the Supreme Court held that the intention of the legislature in enacting the aforesaid sections and the intention of the Central government who constituted the Tribunal was that all the members of the tribunal should sit and decide: the absence of one member from the deliberations of the Tribunal would invalidate its finding. I do not go more into the facts of that case, since I am satisfied that what has to be done in a case like that is to gather the intention behind the constitution of the tribunal and see whether the entire Tribunal should sit or not. Therefore, the supreme Court case is only authority for the proposition that if the intention was that the entire Tribunal should sit, then a decision taken by some alone of its members is bad. The intention has to be gathered in each case from the relevant statute or the relevant provision of law under which the particular tribunal is constituted.
The next decision is Kama Umi Isa Ammal v. Rama kudumban (AIR. 1953 Mad. 129 ). A Tribunal was constituted under the Madras estates (Abolition and Conversion into Ryotwari) Act by the Government; and the tribunal consisted of District Judge, a Subordinate Judge and a Revenue divisional Officer. The District Judge was to preside. But, by a rule framed under the Act the quorum of the Tribunal was fixed at two, the rule providing that "not less than two members shall be necessary to constitute a sitting of the Tribunal". The Madras High Court held that this rule was bad, since the intention when the Tribunal was constituted was that all the three members should sit and the District Judge-member should preside. The rule, if it was good, would make it possible for any two members to constitute the Tribunal and would also do away with the provision that the District Judge-member should preside.
The next decision to which my attention has been drawn is M/s. Sheik Hussain and sons v. State of Andhra Pradesh (AIR. 1964 And Pra. 36), a decision by a Full Bench. Satyanarayana Raju J. , who spoke for the Full bench, discussed the question referring to several decisions including the decision of the Supreme Court already referred to and came to the conclusion that under S. 44 (2) of the Motor Vehicles Act, as amended by Act 100 of 1956, a tribunal, whose composition was not in accordance with the statutory requirements, had no jurisdiction to decide questions arising under the statute. In that case the appellate power was conferred by the State Government on the State Transport Authority and there were three members in that Tribunal. All the members did not sit to hear an appeal; and the reasoning of the Full bench appears to be that since the State Transport Authority and the Regional transport Authority were both constituted under S. 44 (2) and since the State government conferred the appellate power on the former, the State Authority as contemplated by the Act should sit and hear appeals.
(3.) A decision which apparently takes a contrary view (which appears at the first blush to support the contentions of the State and the respondents to whom the temporary permits were given) is also brought to my notice; and that is M/s. R. Veerayya v. State of Andhra Pradesh (AIR. 1967 And. Pra. 265 ). The decision is by Jaganmohan Reddy J. , and before the learned judge the decision of the Full Bench of the same High Court already discussed does not appear to have been cited. This case was dealing with a question of the competence of the appellate authority constituted under S. 54 and 68 (2) 0) of the Act. The learned judge held that since the State had power to constitute the appellate authority, the State had also power to prescribe a quorum for it by rules. I may reiterate that this decision was not dealing with the Regional transport Authority or the State Transport Authority, but was only considering the constitution of the appellate authority. Under S. 64, any person aggrieved by any one of the orders mentioned in the several clauses therein may appeal to the prescribed authority. Again, S. 68 (1) states that the State Government may make rules for the purpose of carrying into effect the provisions of the chapter in which the section appears. Sub-section 2 of the section then provides, inter alial, that the rules may, without prejudice to the generality of the language of sub-section 1, prescribe the authorities to whom, the time within which and the manner in which appeals may be made (clause j ). These provisions make it abundantly clear that the Act itself has not prescribed the manner of constituting the appellate authority; and that the constitution of the appellate authority is left to the State Government to be prescribed by rules. If so by rules the State Government could have made the appellate authority a single man Tribunal: it could have also made the Tribunal consist of more numbers and prescribed a quorum. This was what was decided by jaganmohan Reddy J. ; and evidently, there was no need for referring to the Full bench decision. It is also apparent that the position is different regarding the appellate authority. Under S. 44 (2) of the Act the constitution of the regional Transport Authority and the State Transport Authority is prescribed; and such constitution cannot be varied by means of a rule framed under the Act.
Now, I come to the impugned rule, R. 153, which says that no business shall be transacted at a meeting of the Regional Transport authority unless there be present at such meeting at least two members and also unless one of the members so present is the chairman or an official. S. 44 (2)makes it mandatory that the Regional Transport Authority (I am not concerned with the State Transport Authority in these cases) shall consist of a chairman who had had judicial experience and such other officials and non-officials, not less than two. This means that the Authority should have at least three members, both official and non-official, the chairman being one who had had judicial experience. In other words, this signifies that a Regional Authority of not less than three members should be constituted; that it must have both official and non-official members; and that the person presiding must be one who had had judicial experience. All these must have been deliberately and wisely intended by the legislature. At the same time, the legislature has authorised the State governments to increase the membership to any number above three. This I am pointing out with a purpose, because, at a stage of the arguments, Mr. Kochu thommen has contended that all the members of the Regional Transport Authority should sit and no quorum at all can be prescribed by rules. As I can see the intention of the legislature, the essentials contemplated are: one that the authority must have three members the quorum should not be less; two, that there must be both official and non-official members taking part; and three, that the person presiding must be one who had had judicial experience. These essential and minimum requirements contemplated by the Motor Vehicles Act cannot be nullified by a rule framed under the Act.;