- (1.) S. B. Civil Writ Petition No. 64 of 1965 has come up before this Court on a reference by Hon'ble Jagat Narayan J.
(2.) THE facts leading to the reference and the circumstances under which the reference has been made may be briefly stated as follows - Petitioner Jagdish Prasad applied for grant of a fresh permit on the Beawar-Bijainagar via Sheopura Ghata route on 30th July, 1962. This application was published in the Rajasthan Rajpatra of 30th August, 1962, and objections were invited under sec, 57 (3) of the Motor Vehicles Act. Respondent No. 3 Tarachand Tak, who was one of the eight existing operators of Beawar-Bijainagar via Sheopura Ghata route, filed objections against the grant of permit to the petitioner. It may be mentioned here that on 20th June, 1962, the State Transport Authority exercising its powers under sec. 54 sub-sec. (3) of the Motor Vehicles Act, 1939, issued certain directions which run as follows - "the State Transport Authority, Rajasthan, in its meeting held on 2. 6. 62, have resolved vide resolution No. 2 as under: Resolved that in pursuance of the power conferred u/s. 44 (3) of the M. V. Act, 1939, the S. T. A. Rajasthan, Jaipur hereby directs all the RTAs in Rajasthan to desist from granting fresh stage carriage permits on 'a' class routes in their respective regions (except those routes lying in Bikaner Region) in order to offer altera-native route to the displaced as well as would be displaced operator in view of nationalisation of a number of routes in the State. The above direction shall continue to be operative till the displaced as well as would be displaced persons in due process of law are rehabilitated. Provided that if the displaced or the would be displaced operators do not accept the alteranative routes offered to them and bus routes which fall short of adequate service due to scope for more services, applications from other interested operators be considered after giving due preference to the displaced as well as would be displaced operators. Provided further that RTAs would grant alternative routes to displaced or would be displaced operators in their respective region only - The above direction shall however not govern cases for renewals. This supersedes all previous directions issued in this regard from time to time. The proceeding of the meeting will be sent to you in due course of time and in the mean while I am directed to request you to please take necessary action in the matter. " The petitioner's application was considered by the respondent no. 3 at its meeting held in October 1963 and was pending on the ground the "the route in question being 'a' class routes no action can be taken and the case of Jagdish Prasad be kept pending till the route has been first offered to the displaced operators in compliance of the STA resolution dated 2. 6. 62 and applications. , if any, respect there to had been disposed of. " Subsequently, the respondent no. 2 published a notice in the Rajasthan Rajpatra dated 30th October, 1964 notifying for the information of all concerned 'that the meeting of the Regional Transport Authority will be held on 9th, 10th and 11th November, 1964 in the meeting hall of Government Hostel, Jaipur from 9 A. M. for considerations of the cases" detailed in that notification. Item No. 3 of the notification mentions at page 34 cases regarding the grant of renewal of alternative and fresh stage carriage permits on Beawar-Bijainagar via Sheopura Ghat route. At this meeting the Regional Transport Authority granted a fresh permit to the petitioner by its resolution no. 23. Another permit was granted to Automobile Transport, Rajasthan Private Limited, Ajmer. It may be usefully pointed out at this stage as found by the Transport Appellate Tribunal that one Syed Usuf Ali Shah, a displaced operator, had also applied for a permit for alternative route and that his application had been published in the Rajasthan Rajpatra dated 27th October, 1964 and was pending in the office of the Regional Transport Authority for disposal. The Regional Transport Authority, however, in its Resolution No. 23 whereby the petitioner was granted permit, took no notice of this application. Syed Usuf Ali Shah was not present before the Regional Transport Authority nor his presence or absence was indicated. Syed Usuf Ali Shah, however, made no grievance of any kind on this score and filed no appeal. The respondent no. 3, however, felt aggrieved by the resolution of the Regional Transport Authority and filed an appeal before the Transport Appellate Tribunal and took various objections. The objections relevant for the purposes of the present writ application any be stated as follows: - (1) That the respondent no. 3 had no notice of the Regional Transport Authority meeting held on 9/10th November, 1964 and the decision of the Regional Transport Authority without giving any opportunity to him was illegal. (2) That the Regional Transport Authority had fixed the scope of six permits for the route by resolution no. 456 dated 31st December, 1960, and the grant of permit to the petitioner was in excess of the scope and was, therefore, invalid. (3) That the route in question is 'a' class route and no fresh permit could have been granted in view of the directions of the State Transport Authority dated 2nd June, 1962. The Transport Appellate Tribunal over-ruled the various pleas including the first two but the objection stated last was accepted by it and it held that the grant of permit to the petitioner was in contravention of the directions issued by the State Transport Authority on 20th June, 1962 in as much as the application of a displaced operator Syed Usuf Ali Shah was pending with the Regional Transport Authority when the permit in question was granted. The Transport Appellate, Tribunal, therefore, set aside the resolution of the Regional Transport Authority No. 93 granting permit to the petitioner and cancelled the permit. Aggrieved by this order of the Transport Appellate Tribunal, the petitioner presented a writ application under Articles 226 and 227 of the Constitution in this Court for quashing the decision of the Transport Appellate Tribunal. The writ application came before Hon'ble Jagat Narayan, J. Before him, it was contended that the grant of stage carriage permit is a qusai-judicial matter for which provision has been made in sections 46, 47, 48 and 57 of the Motor Vehicles Act and that sec. 44 (3) does not contemplate the issuing of direction in matters covered by these sections. Reliance was placed on a decision of the Supreme Court reported in B. Rajagopala Naidu vs. The State Transport Appellate Tribunal, Madras and others (1 ). After referring the various observations of the Supreme Court in that case, he held that the observations of the Supreme Court are applicable to the impugned direction with greater force and consequently, he felt inclined to treat the directions invalid. Noticing further that the decision of the Transport Appellate Tribunal proceeded on assumption that both the Appellate Authority and the Transport Authority were bound by the impugned directions, he considered the decision of the Transport Appellate Tribunal vitiated. He, however, referred to some observations made by a Division Bench of this Court in Bhagsing and three others v. The Transport Appellate Tribunal and twenty six others (D. B. Civil Mc. Writ Petition No. 255/1962 decided on 14th May 1965), where the validity of similar directions dated 15th January 1961 was affirmed and observing that the Supreme Court decision in B. Rajagopala v. S. T. A. Tribunal (l) was not brought to the notice of the Bench of this Court and noticing contrariety in the observations in the decision of the Bench of this Court and Supreme Court decision, he thought it proper to refer the case to larger Bench. This is how the matter has come before us in the Full Bench. At the out set it will be convenient and useful to advert to the Supreme Court decision in B. Rajagopala vs. S. T. A. Tribunal (1) for the principles that should guide the disposal of the present case. The Supreme Court in that case considered the validity of a general order No. 1298 issued by the Government of Madras on April 28, 1956 in the exer-cise of its powers conferred by sec. 43-A of the Motor Vehicles Act, 1939 inserted by the Madras Amending Act 20 of 1948. This order had figured in many cases before the High Court and also in the Supreme Court and both had occasion to deal with the impugned order, its character, its scope and its effect, but the validity of the order was questioned for the first time in S. Rajagopala's case (1 ). In considering the question, his Lordship the Chief Justice who delivered the judgment of the Court, referred to the scheme of the Act in general and the scheme of Chapter IV in particular and observed " (1) It is well settled that secs. 47, 48, 57, 60, 64 and 64-A deal with quasi-judicial powers and functions;" " (2) That the field covered by sec. 43-A like that covered by secs. 42, 43 and 44 is administrative and does not include the area which is the subject matter of the exercise of quasi-judicial authority by the relevant Tribunal. " This was considered as one relevant consideration for treating sec. 43-A as aslo covering the administrative field. Referring to yet another consideration for interpreting sec. 43-A in the above manner, his Lordship made the following significant observations - "in interpreting sec. 43-A, 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 Tribunal constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. 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. If the exercise of discretion conferred on a quasi-judicial tribunal is controlled by any such direction, that forges fetters on the exercise or 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. It may indicate by specific provisions on what matters the tribunals constituted by it should adjudicate. It may be specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters. 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 Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by administrative or executive orders. This position is so well established that we are reluctant to hold that in enacting Sec. 43-A the Madras Legislature intended to confer power on the State Government to invade domain of the exercise of judicial power. " His Lordship also Observed that the validity of sec. 43-A was maintained by the Madras High Court by expressly observing that what sec. 43-A purported to do was to cloth the Government with authority to issue directions of an administrative character and nothing more. At a latter stage, it was further observed - "we cannot overlook the fact that the validity of the Act particularly in reference to its provisions prescribing the grant and refusal 'of permits, has been sustained substantially because this important function has been left to the decision of the Tribunals constituted by the Act and these Tribunals are required to function fairly and objectively with a view to exercise their powers quasi-judicially, and so any attempt to trespass on the jurisdiction of these Tribunals must be held to be outside the purview of sec. 43-A. " Relying upon the principles laid down, it was contended by Mr. Tiwari for the petito-ner that the impugned directions clearly interfered with the exercise of function by the quasi-judicial Tribunal and constitute an undue encroachment and, therefore, must be held invalid on the principles authoritatively laid down by the Supreme Court. He also added that these directions deprive the applicants for fresh permits of their rights to have their claims adjudicated in accordance with the law and will have effect of suspending the operation of Chapter IV. It was also urged that they effected the fundamental rights to ply the bus subject to the provisions of the Motor Vehicles Act. Opposing the writ application, the Government Advocate contended that the impugned directions were not intended to nor do they interfere with the exercise of quasi-judicial functions. He contended that on a proper constructions of the various provisions of Chapter IV-A the direction should be treated as purely of an administrative nature. His arguments may be summarised as follows: -
(3.) THE learned Government Advocate pointed out: - (1) Sec. 68-B in Chapter IV-A of the Act provides that the provisions of the chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument; (2) that sec. 68-G (2) provides for the offer of permit for an alternative route or area in lieu of monetary compensation payable on account of cancellation of existing terms or modifications of the terms thereof ; (3) that under sec. 43 (i) (iii) of the Act added and substituted by Act 100 of 1956, State Government may having regard to the circumstances mentioned in sec. 43 from time to time by notification in the official gazette, issue directions to the State Transport Authority regarding the grant of permits for alternative routes or areas, to persons in whose cases the existing permits are cancelled or the terms thereof are modified in exercise of the powers conferred by clause (b) or clause (c) of sub-sec. (2) of sec. 68-F ; and contended that the directions for the grant of permits for alternative routes or areas should be considered an administrative act. Reliance was placed upon the observations of a Bench decision of this Court in Abdul Gafoor vs. State of Raj. (2) where the granting of permits for alternative routes or areas under sec. 43 (i) (iii) was treated as valid and a more suitable method. In this connection it was also suggested that the State Government can issue directions in connection with the grant of permits for alternative routes or areas under this provision irrespective of the controversy whether the grant of permits for alternative routes or areas is a quasi-judicial function or an administrative function. For the same reasons it was submitted that the State Transport Authority should also be held competent to issue such directions under sec. 44 (3) (a) of the Act for co-ordinating and regulating the activities and policies of the Regional Transport Authority. Alternatively, it was contended that the initial offer to the holders of the existing permits for alternative route or area under sec. 9 (g) of the Rajasthan State Road Transport Service (Development) Rules, 1950, is at any rate, an administrative act and that consequently, the State Transport Authority is quite competent to issue directions for making such initial offers of permits for alternative routes or areas. Pointing out in this connection that the rules 9 (d), (e), (f) and (g) merely envisage and provide for the consideration of the objections by the existing members to the grant of permits for alternative routes or areas in pursuance of the initial offers and not by applications for fresh permits under sec. 57 and consequently, the State Transport Authority should be held competent to issue further consequential directions to restrain the grant of fresh permits so as to implement the offer of permits for alternative routes or areas to displaced operators, it was contented that in this back-ground the impugned directions are sustainable. Mr. D. P. Gupta appearing as intervener and supporting the stand taken by the Government Advocate addressed the following arguments: He contented that under sec. 47 (1) the Regional Transport Authority shall have regard amongst various matters to the interest of the public generally. The interest of the public generally, he pointed out, is very elastic concept and in many matters opposite views may be expressed as to the interest of the public generally. He emphasised the need of certain guiding principles for determination of the public interest generally for achieving uniformity in the decisions of the Regional Transport Authorities and sought to justify the impugned directions on this consideration. The counsel for respondent No. 3 Mr. Mohammed Fasihuddin submitted that even if the order of the Transport Appellate Tribunal in so for as it is based upon an assumption of the binding nature of the impugned directions be treated as erroneous, still the decision of the Transport Appellate Tribunal on the respondent No. 3 contentions shown as 1 and 2 earlier respondent No. 3 should be held incorrect and this Court may be pleased to set aside the decision of Transport Appellate Tribunal on these contentions and issue appropriate orders. After the conclusion of his arguments (when Mr. Tiwari was summing up his arguments) he referred to a Bench decision of this Court reported in M/s General Motor Bus Service, Jaipur vs. The Regional Transport Authority (3) holding that the directions issued by the State Transport Authority requiring the Regional Transport Authority to postpone the consideration of grant of permits on the routes proposed to be nationalised were valid and that there was no conflict between the directions and the provisions of secs. 47 and 57 of the Act. On the basis of this decision, he sought to sustain the validity of the impugned directions. In the circumstances of the case, I consider the proper approach will be to examine the arguments of the Government Advocate and the counsel for the other respondents to see whether the impugned directions can be sustained. ;