SUBBA RAO, J.: - (1.) THE following Judgeent of the court was delivered by :
(2.) THIS appeal by special leave is directed against the judgment of a division bench of the High court of judicature for Madras confirming that a single judge of that court allowing. the petition filed by the respondent under Art. 226 of the constitution and quashing the order made by the State Transport Appellate tribunal granting a stage carriage permit to the appellant for the route Tanjore-Mannargudi via Vaduvoor. The facts relevant to the question raised may be briefly stated. The Regional Transport Authority, Tanjore, called for applications in respect of the issuing of a stage carriage permit for the route Tanjore-Mannargudi via Vaduvoor. 11 persons applied for the permit. The Regional Transport Authority, adopting the marking system prescribed in' G.O. Ms. No. 1298 (Home) dated 28/04/1956, awarded marks to different applicants : the appellant of the highest number of Marks, viz., 7, and the first respondent got only 4 1/4 marks, with the result the appellant was preferred to the respondent and a permit was issued to him. It is not necessary to notice the marks secured by the other applicants before the Regional Transport Authority, for they are not before us. Total of the said marks secured by each of the said two parties was arrived at by gadding the marks given under the following heads: JUDGEMENT_1626_AIR(SC)_1963Html1.htm It would be seen from the said table of marks that if the 4 marks secured by the appellant under the first column 'Viable Unit' were excluded from his total, he would have got only a total of 3 marks under the remaining heads and the first respondent would have got a total of 41 marks under the said heads. Under the said G.O., as interpreted by this court, the marks under the first column, i.e., those given under the head 'Viable Unit', would be counted only if other things were equal; that is to say, if the total number of marks obtained by the said two applicants under Cols.2 to 5 were equal. It is, therefore, obvious that on the marks given the Regional Transport Authority went wrong in issuing, a permit in favour of the appellant, as he should not have taken into consideration the 4 marks given under the 1st Column since the total marks secured by him under Cols. 2 to 5 were less than those secured by the first respondent. Aggrieved by the said order, the first respondent preferred an appeal to the State Transport Appellate tribunal, hereinafter called the Appellate tribunal. The said Appellate tribunal recast the marks in respect of the said two .parties in the following manner: JUDGEMENT_1626_AIR(SC)_1963Html2.htm It would be seen from the marks given by the Appellate tribunal that the total of the marks secured by the appellant under Cols. 2 to 5 is equal to that secured by the first respondent under the said columns, each of them securing 4 marks. It was contended before the Appellate tribunal that the first respondent was entitled to some mark under the column 'Residence or place of business' on the ground that it had the places of business at Tanjore and Mannargudi and that the Regional Transport Authority had given one mark to the first respondent under the said column ; but the Appellate tribunal rejected that contention on the ground that the first respondent had a branch office at Kumbakonam and, therefore, the office at Tanjore or Mannargudi could not be treated as a branch office. Aggrieved by that order, the first respondent filed a petition before the High court under Art. 226 of the Constitution for setting aside that order. Ramachandra lyer, J., who heard the said application allowed it. The main reason given by the learned judge for allowing the petition was that the Appellate tribunal omitted to give any mark in respect of residential qualification, which amounted to refusal to take into consideration the admitted fact, namely, the existence of a workshop at Mannargudi and therefore, it amounted to a breach of s. 47 (1) (a) and (c) of the Motor Vehicles Act. The same idea was expressed by the learned judge in a different way thus: It............ in regard to residential qualification, it(the Appellate tribunal) declined to consider whether the office workshop at Mannargudi are sufficient to entitle the petitioner to any marks under head for the mere reason that it was a branch of a branch office.' He held that the said refusal was an error apparent on the face of the record; and he accordingly quashed the order and at the same time indicated that the result 'was that the State Transport Appellate tribunal would have to dispose of the appeal afresh. The Letters Patent appeal filed by the appellant was heard by a division bench consisting of Anantanarayanan and Venkatadri, jj. The learned judges dismissed the appeal and the reason of their decision is found in the following remarks 'In essence, the judgment really proceeds on the basis that with regard to the claim of the respondent to some valuation under Col. 3, arising from the existence of an alleged branch office at Mannargudi there has been no judicial disposal of the claim.' They also observed 'The tribunal is, of course, at liberty to adopt its own criteria for the valuation under Col. 2, provided they are consistently applied, and based upon some principle.' In dismissing the appeal the learned judges concluded '............ we desire to make it clear that we are not in any way fettering the discretion of the State Transport Appellate tribunal to arrive at its own conclusion on the claims of the two parties irrespective of any observations that might have been incidentally made by this court on those claims.' The appellant has preferred the present appeal by special leave against the said order. It will be seen from the aforesaid narration of facts that the High court issued the writ as it was satisfied that there was a clear error apparent on the face of the record, namely, that the Appellate tribunal refused to take into consideration the existence of the branch office at Mannargudi for awarding marks under the head 'residence' on the ground that there was another office of the first respondent at Kumbakonam. While it gave marks to the appellant for his residence, it refused to give marks to the first respondent for its office on the aforesaid ground. Mr. Sen, learned counsel for the appellant, raised before us the following points (1) The. court has no jurisdiction to issue a writ of certiorari under Art. 226 of the Constitution to quash an order of a tribunal on the ground that there is an apparent error of fact on the face or the record, however gross it may be, and that, in the instant case, if there was an error, it was only one of fact; (2) this court has held that directions given under s. 43 of the Motor Vehicles Act are only administrative in character and that an order made by a tribunal in breach thereof does not confer a right on a party affected and, therefore, the Appellate tribunal's order made in derogation of the said directions could not be a subject-matter of a writ. The argument of Mr. Viswanatha Sastri, learned counsel for the first respondent, may be summarized thus : The petitioner (appellant herein) -has a fundamental right to carry on business in transport. The Motor Vehicles Act is a law imposing reasonable restrictions in public interest on such right. The Appellate tribunal can decide, on the material placed before it, whether public interest would be better served if the permit was given to the appellant or the first respondent within the meaning of s. 47 of the said Act. The government, in exercise its powers under s. 43 of the said Act, gave administrative directions embodying some principles for enabling the tribunal to come to a conclusion on the said point. The tribunal had jurisdiction to decide the said question on the basis of the principles so laid down or dehors them. In either view, it only decides the said question. The first respondent raised before the tribunal that public interest would be better served if a permit was issued to it as it had a well equipped branch office at Mannargudi. The said question was relevant. in an inquiry under s. 47 of the said Act, whether the tribunal followed the instructions given by the government or ignored them. In coming to a conclusion on the said question, the tribunal made a clear error of law inasmuch as it held that in the case of the first respondent, as it had a branch at Kumbakonam, its other branch at Mannargudi should be ignored. This, the learned counsel contends, is an errorapparent on the face of the record. He further contends that the scope of an inquiry under Art. 226 'is wide and that it enables the court to issue an appropriate direction even in a case of an error of fact apparent on the face of the record.
(3.) IT is not necessary to express our opinion on the wider question in regard to the scope and amplitude of Art. 226 of the Constitution, namely, whether the jurisdiction of the High court under the said Article to quash the orders of Administrative tribunals is confined only to circumstances under which the High court of England can issue a writ of certiorari or is much Wider than the said power, for this appeal can satisfactorily and effectively be disposed of within the narrow limits of the ambit of the English court's jurisdiction to issue a writ of certiorari as understood by this court. If it was necessary to tackle the larger question, we would have referred the matter to a bench of 5 judges as it involved a substantial question of law as to the interpretation of the Constitution; and under Art. 145 thereof such a question can be heard only by a bench of at least 5 judges. In the circumstances a reference to the decisions of this court cited at the Bar, which are alleged to have expressed conflicting views thereon, is not called for. We shall therefore, confine ourselves to the narrow question. Adverting to the scope of a writ of certiorari in common law, this court, in Hari Vishnu Kamath v. Syed Ahmed Ishaque(1) laid down the following propositions: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings e.g., when it is based on clear ignorance or disregard of the provisions of law. This view was followed in Nagendra Nath Bora, v. The Commissioner Hills Division and Appeals, Assam (1), Satyanarayan v. Mallikarjun (2) Shri Ambica Mills Co. v. S. B. Bhutt (3) and in Provincial Transport Services v. State Industrial court, Nagpur (4 ). But the more difficult question is, what is the precise meaning of the expression ''manifest error Apparent on the face of the proceedings ?' Venkatarama Ayyar, J., attempted to define the said expression in Hari Vishnu Kamath's Case (5) thus 'Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J., in Botuk K. Vyas v. Surat Municipality (1), that no error could be said to be apparent on the face of the record if it was not self evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.' It would be seen from the said remarks that the learned judge could not lay down an objective test, for the concept necessarily involves a subjective element. Sinha,J., as he then was speaking for the court in Nagendra Nath Bora's Case (1), attempted to elucidate the point further and proceeded to observe at p. 1269-70 thus : ''It is clear from an examination of the authorities of this court as also of the courts in England, that one of the grounds on which the jurisdiction of the High court on certiorari may be invoked is an error of law apparent on the face of the record and every error either of law or fact, which can be corrected by a superior court, in exercise of its statutory powers as a court of appeal or revision.' This decision assumes that the scope of a. writ in the nature of certiorari or an order or direction to set aside the order of an inferior tribunal under Art. 226 of the Constitution is the same as that of a common law writ of certiorari in England we do not express any opinion on this in this case. This decision practically accepts the opinion expressed by this court in Hari Vishnu Kamath's Case (1). The only addition it introduces is the anti-thesis it made between ''error of law and error of fact' and 'error of law apparent on the face of the record.' But the question still remains in each case whether an error is one of law or of fact and that falls to be decided on the facts of each case. Das Gupta, J., makes yet another attempt to define the expression when he says in Satyanarayan v. Mallikarjun (2), at p. 141 thus : 'An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of record. As the above discussion of the rival contentions show the alleged error in the present case is far from selfevident and if it can be established, it has. to be established, by lengthy and complicated arguments.' The learned judge here lays down the complex nature of the arguments as a test of apparent error of law. This test also may break, for what is complex to one judicial mind may be clear and obvious to another : it depends upon the equipment of a particular judge. In the ultimate analysis the said concept is comprised of many imponderables : it is not capable of precise definition, as no objective criterion can be laid down, the apparent nature of the error, to a large extent, being dependent upon the subjective element. So too, in some cases the boundary between error of law and error of fact is rather thin. A tribunal may hold that 500 multiplied by 10,000.00 is 5 lakhs (instead of 50 lakhs); another tribunal may hold that a particular claim is barred by limitation by calculating the period of time from 1956 instead of 1961 ; and a third tribunal may make an obvious error deciding a mixed question of fact and law. The question whether the said errors are errors of law or fact cannot be posited on a priori reasoning., but -falls to be decided in each case. We do not,, therefore, propose to define with any precision the concept of 'error of law apparent on the face of the record'; but it should be left, as it has always been done, to be decided in each case. The only question therefore, is whether the State Transport Appellate tribunal committed an error of law apparent on the face of the record. A look at the provisions of s. 47 and s. 43 of the Motor Vehicles Act, 1939, as amended by the Madras Legislature, will facilitate the appreciation of the problem. Under s. 47, a Regional Transport Authority in considering an application for a stage carriage permit is enjoined to have regard, inter alia, to the interests of the public generally. Section 43-A, introduced by the Madras Legislature by the Motor Vehicles (Madras Amendment) Act, 1948, says that the State government may issue such orders and directions of a general character as it may consider necessary in respect of any matter relevant to road transport to the State Transport Authority or to a Regional Transport Authority and such Transport Authority shall give effect to all such orders and directions. It has been held by this court in M/s. Raman and Raman Ltd. v. The State of Madras (1), that s. 43A conferred a power on the State government to issue administrative directions, and that any direction issued thereunder was not a law regulating rights of parties. It was also pointed out that the order made and the directions issued under s. 43-A of the Act cannot obviously add to, or subtract from, the consideration prescribed under s. 47 thereof on the basis of which the tribunal is empowered to issue or refuse to issue a permit, as the case may be. It is, therefore clear that any direction given under s. 43A for the purpose of considering conflicting claims for a permit by applicants can only be to enable the Regional Transport Authority to discharge its duties, under s. 47 of the Act more satisfactorily, efficiently and impartially. To put it differently,the directions so given cannot enlarge or restrict the jurisdiction of the said tribunal or authority but only afford a reasonable guide for exercising the said jurisdiction. Concretely stated, an applicant in advancing his claim for a permit may place before the Authority an important circumstance in his favour, namely, that he has a branch office on the route in respect whereof he seeks for a permit. He may contend that he has an office on the route, and that the interests of the public will be better served, as the necessary amenities or help to meet any eventuality in the course of a trip will be within his easy reach. The government also under s. 43A may issue instructions to the Regional Transport Authority that the existence of an office of a particular applicant on the route would be in the interests of the public and, therefore, the said applicant should be given a preferential treatment if other things are equal. The issue of such an instruction only emphasizes a relevant fact which an authority has to take into consideration even if such an instruction was not given. But if the Authority under a manifest error of law ignores the said relevant consideration, it not only disobeys the administrative directions given by the government, but also transgresses the provisions of s. 47 of the Act. The disobedience of the instructions which are administrative in nature may not afford a cause of action to an aggrieved party, but the transgression of the statutory law certainly does. What is the position in the present. case ? ;