- (1.) The short but important point of law which has been raised 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 by S. 43A of the Motor Vehicles Act, 1939 (Central Act IV of 1939) (hereinafter called the Act) inserted by the Madras Amending Act 20 of 1948, is valid. Mr. Mohan Kumara Managalam 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 has never been impeached in judicial proceedings. Litigation in regard to the grant of permits under the relevant provisions of the Act has figured prominently in the Madras High Court in the form of writ petitions invoking the said High Court's jurisdiction under Art. 226 of the Constitution and several aspects of the impugned order have come to be examined. The echoes of such litigation have frequently 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 regard 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 well-founded and that would tend to make the initial judicial response to the said challenge more hesitant and reluctant. But Mr. Kumara Mangalam contends that 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.
(2.) The appellant B. Rajagopala Naidu is a bus operator in the State of Madras and he runs a number of buses on various routes. 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 the 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.
(3.) Against this decision 18 appeals were preferred by the unsuccessful applicants including respondents 2 and 3. All these appeals were heard together by the State Transport Appellate Tribunal, Madras in June 1959. It appears that before the appeals were thus heard, the State Government had superseded the principles enunciated in the order in so far as they 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 and 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.;