Mohd. Yousuf Basha And Others v. A.P State Road Transport Corporation And Others

P.A Choudary, J.:— The appellant was holding a stage-carriage pemit under the Motor Vehcles Act, 1939 in respect of the route of Madanapalli to Anantapur via Molakalache-ruvu and Kadiri. In the year 1974, the appellant applied for the variation of that route so that her bus may take a deviation at 126 K.M to go to Somapalem and come back to rejoin at 129 K.M the main route to Anantapur. This application was granted on 7th March, 1975 by the State Transport Authority.

2. The Andhra Pradesh State Road Transport Corporation had published in the Gazette dated 1st November, 1974, a draft scheme under section 68, clause C of the Motor Vehicles Act in respect of the route Auantapur to Madanapalli via Molakalacheruvu and Kadiri. This draft scheme was aoproved by the Government of Andhra Pradesh on 4th June, 1975. Both as proposed and as approved the Scheme excludes only those operators whose routes totally overlap the route of Madanapalli to Anantapur. In other words, such of those operators whose routes overlap only partially the route of Madanapalli to Anantapur would be saved from being excluded by the scheme. The Secretary to the State Transport Authority on 5th June, 1976, had however,’acting erroneously not only issued permits in favour of the Andhra Pradesh State Road T-ans-port Corporation on the route of Madanapalli to Anantapur but had also cancelled the permit of the appellant whose route overlaps only partially. Against those orders, the appellant had preferred a revision under section 64 A of the Motor Vehicles Act to the State Transport Appellate Tribunal, Hyderabad, and that revision was allowed by an order dated 12th February, 1976 The appellant's permit was thus restored back to her enabling her to ply on the route of Madanapalli to Anantapur with the sanctioned deviation. Against that order of the State Transport Appellate Tribunal, Hyderabad, the Andhra Pradesh State Road Transport Corporation had filed Writ Petition No. 2498 of P76 The writ petition was allowed by our learned brother Justice Seth against whose judgment the present Writ Appeal No 28 of 1977 was filed. Our learned brother Justice Seth held, negativing the contentions of the A.P State Road Transport Corporation that the writ appellant's route is not completely overlapping as that route from Madanapalli to Anantapur takes a small deviation at 126 K. M to rejoin the main route at 129 KM. The learned Judge had therefore held that the writ appellant for that reason alone is not liable to be completely excluded under the terms of the scheme. But the learned Judge held that the granting of sanction of the deviation by the State Transport Authority on 7th March, 1975 in favour of the writ appellant is contrary to section 68-F (1-D) of the Motor Vehicles Act as it amounts, according to him to granting of a new permit. The learned Judge, therefore, held that the State Transport Authority acted without jurisdiction in granting the deviation and therefore the deviation which the State Transport Authority had granted conferred no leal rights on the writ appellant. Having thus held that the granting of variation has no legal sanction, the learned Judge ignored the variation and concluded on that basis that there is total overlapping of the appellant's route resulting in the total exclusion of the appellant by the scheme.

3. Sri Venkataramana and Sri Babul Reddy who appeared in support of this writ appeal attacked the correctness of the judgment of Justice Seth. They advanced two principal arguments:— (1) The learned Judge is wrong in holding that the granting of variation by the State Transport Authority on 7th March, 1975 is contrary to section 68-F (1-D); (2) that even on the assumption that the State Transport Authority should not have granted variation, this order is not void as held by Justice Seth but is only voidable. Inasmuch as that order of the State Transport Authority was not avoided by the Andlra Pradesh State Road Transport Corporation in any regularly constituted proceedings, its validity cannot be allowed to be impugned collaterally in a writ petition. They also said that the principle of res judicata would apply to debar the Andhra Pradesh State Road Transport Corporation from challenging the valid iv of the variation granted on 7th March, 1975 by the State Transport Authority.

4. In elaboration of the first part of the argument, it is argued by the learned Counsel that what is forbidden under section 68-F (1-D) of the Act is the grant of a new permit or the grant of a renewal of an existing permit. The granting of a variation, they argued, does not amount to either granting of a new permit or the renewal of an old permit. Their argument is that under section 57, the route on which the vehicle should travel, the number of trips the vehicle should make and the timings, are all treated as conditions of permit and the sanctioning of a variation of a route only amounts to an alteration of one of the conditions of the permit and does not amount to granting of a new permit. Under the Motor Vehicles Act, a permit can be granted only for a minimum period of three years and a maximum period of five years. The Counsel therefore said that the variation of a route not having a period of durability independent of the permit already granted does not amount to the granting of a new permit. In support of these conditions, they cited a judgment of Justice Gopaiakrishnan Nair reported in Janardhan Rao v. Dy. Transport Commissioner, Kakinada . 1964 2 An. W.R 426 and also an unreported judgment of a Division Bench consisting of Justice A. Sambasiva Rao (as he then was) and Justice M. Ramachandra Raju in Writ Petition No. 206 of 1973 dated 15th October, 1975. Therefore, they argued that Justice Seth was wrong in holding that the State Transport Authority while sanctioning variation on 7th March, 1975, granted a new permit in favour of the writ appellant contrary to section 68-F (1-D) of the Act. They also attacked the judgment of Justice Seth regarding the interpretation the learned Judge placed on section 57(8) of the Motor Vehicles Act. Justice Seth held that section 57(8) of the Act provides for the granting of a new permit, inasmuch as the variation was granted on 7th March, 1975, by the State Transport Authority, the learned Judge treated that action of the State Transport Authority as amounting to the granting of a new permit and as having been done under section 57(8) of the Motor Vehicles Act.

5. section 68-F (1-D) which forbids the granting of any permit or renewal of a permit during the intervening period between the date of the publication of the draft notification under section 68-C of any scheme and the date of publication of the approval of it under section 68.D reads in material part as follows:—

“No permit shall be granted or renewed during the period intervening between the date of the publication under section 68-C of any scheme and the date of publication of the approval or modified scheme, in favour of any person fit any class of road transport service in relation to an area or route or portion thereof covercd by such scheme.”

6. On the language of the aforesaid section, two questions arise. What is the meaning in which the Legislature has used he word ‘permit’ and what does the Legislature mean when it says, that ‘no permit shall be issued in relation to an area or route or portion thereof covered by such scheme’? The word ‘permit’ is found defined in section 2, clause 20, where the permit is defined as meaning ‘a document issued by the Transport Authorities authorizing the use of a transport vehicle as a stage-carriage’. This definition given in section 2 must give (sic) in if there is anything inconsistent with the subject or the context where it is used. Further the provisions of Chapter IV-A, of the Act, override the rest of the provisions. Now the whole subject in Chapter IV-A, deals with the running and operating of transport services in certain areas or routes or portions thereof by the State Transport Undertakings to the exclusion complete or partial of private operators. The draft scheme framed under section 68-C would be based on considerations of the existing routes and the transport facilities provided by them The necessities of the draft scheme would certainly compel the scheme to wrestle with the transport problems arising out of the existing routes. How can these problems relating to for example, the number of buses, their trips and timings and the quality of their services can ever be resolved except by permitting the Scheme to deal with them? How can the Scheme hope to deal with the transport problems, if they keep on changing in between the interregnum? It is for this reason the Statute orders freezing of transport conditions which should form the basis for the draft and final scheme. The framing of a draft scheme and its finalization in dealing with the existing routes would largely be defeated if the operators are free to escape from the effects of the scheme once after it is proposed. The language of section 68-F 1-D lead textually and contextually in the light of this statutory purpose would clearly show that the word ‘permit’ used in section 68-F (1-D) is not used in the sense of an authorization by way of issuance of a fresh document. It follows that whenever an authorization is given by addition or alteration of anything in relation to a route or a portion thereof during the interregnum of sections 68-C and 68 D the mandate of section 68-F (I.D) would be violated section 68-F (1.D). in our opinion, freezes the state of passenger transportation as it exists on the date of draft notification under section 68-C till the scheme is approved and published under section 68-D. Any other interpretation would render the task of State Transport undertaking to deal with the routes almost impossible. The whole purpose of Chapter IV-A of the Motor Vehicles Act would be defeated. In view of the above, we reject the argument of Mr. Bibul Reddy based on the theory that in asmach as there was no grant of a fresh document, there is no grant of permit. Nor can we accept the argument of Mr. Babul Reddy that the sole purpose of section 68-F (1-D.) is to limit the compensation liability of the State Transport undertaking under section 68-C of the Motor Vehicles Act. As the provisions of Chapter IV-A are given over riding effect and as the definition of ‘permit’ is subject to context and as any other interpretation given to the language of section 68-F (I-D.) would substantially defeat the provisions of the Act, we reject this argument.

7. In view of our conclusion that the language in section 68-F (I-D.) forbids the granting of a variation during the interregnum we do not think that the judgment of the Division Bench reported in Narayana Reddy v. Secretary, RT.A, Cuddapah, would help the petitioner's case. It is true in that case, the Division Bench held that the route on which a particular stage-carriage should ply is a condition of the permit and a variation of such a route is also a variation of the condition of the permit. But that decision and that discussion do not answer the question whether or not, under section 68-F (1-D) such a variation can be competently granted or not during the interregnum of section 68 C and section 68-D. In fact, that is a case which has nothing to do with Chapter IV-A of the Motor Vehicles Act. What was argued and what is no accepted in that case is that a route upon which a stage-carriage has to ply is not a condition of the permit and therefore, it is not open to the Transport Authority to include a new route or to vary an existing route. Once we read the word permit occurring in section 68-F (I.D) as an authorization relating to a route, it would be clear that no authorization can be competently granted by the transport authorities in relation to a route or portion thereof pending the final approval of the scheme by the Government. As the granting of a variation of a route certainly amounts to granting of an authorization in relation to a route or a portion thereof, we are of the clear opinion that such an act is forbidden by section 68-F (1-D) notwithstanding the fact that under the provisions of the Act occurring in parts other than Chapter IV-A the variation of a route is treated merely as an alteration of condition of the permit.

8. We are however, in agreement with the writ appellant that the granting of her application made for the variation of her route could not be treated as a grant of a new permit for the purpose of section 57(8) Section 57(8) says by way of fiction that any application to vary the conditions of a permit should be treated as an application for the grant of a new permit. This legislative direction is intended to settle down an appropriate procedure to be followed by the Transport Authorities in disposing of certain applications such as those made for variation of route. This fiction legislatively devised for that purpose cannot be extended beyond its object. The section 57(8) itself does not say that the granting of that application would amount to granting of a permit. When we deal with the fictions in law we must ask why is a fiction used at all? In this case it is clearly used to dictate a certain procedure. Justice Gopalakrishnan Nair in Janardhana Rao v. Dy. Transport Commissioner had clearly said:—

“Section 57(8) of the Act enacts a fiction. A Legislative fiction has to be strictly confined to the area assigned to it by the Legislature and must be harnessed only for the specific purpose for which the Legislature created it. The fiction enacted in section 57(8) is only for the purpose of applying the same procedure in disposing of an application for a new permit and an application to vary the conditions of a permit The fiction has no larger part to play and no other purpose to serve. When the application to vary the condition of a permit is disposed of, the fiction embodied in section 57(8) of the Act ceases to have any play whatsoever. It cannot be transplanted in another area and put to another use”.

9. This is a well settled principle of law on fictions, (see Lord Mansfield in Mostyn v. Fabrigas . 1774 1 Co.W.P 161..) We therefore think that Justice Seth is not right in holding that a new permit had been granted to the writ appellant under section 57(8) by the State Transport Authority on 7th March, 1975. But this conclusion of ours does not alter our decision to reject the appeal on the first ground.

10. It is next argued by the Counsel for the appellant that the order granting variation by the State Transport Authority on 7th March 1975 is one made within the jurisdiction of State Transport Authority and therefore, such an order even if erroneous could only be invalid and not void. From that premise it was further argued for the appellant that inasmuch as the order of variation was not set aside either in appeal or in revision, the validity of that order could not be impeached in these writ proceedings collaterally.

11. It is a well-settled theory of jurisprudence that when a judicial or quasi-judicial authority makes an order though erroneously, but acting within its jurisdiction, the validity of that order would continue till it is avoided in duly constituted proceedings. On the other hand, it is equally well-settled that the order passed by a quasi-judicial authority without jurisdiction is a nullity and can be ignored. As a neat illustration of these niceties of law, one may refer to Director of Public Prosecutions v. Head. In that case, a man was convicted of carnal knowledge of a detained mentally defective person. He appealed against his conviction on the ground that the mentally defective was not legally detained since Home Secretary's detention order was invalid not being supported by medical certificates required by statutes. The House of Lords held over-ruling Lord Denning's dissent, that the detention of the mentally defective was ultra vires and void and therefore, the conviction of the appellant was wrong. This case clearly illustrates the width and amplitude of the doctrine of nullity as opposed to the doctrine of invalidity. But the appellant in this case cannot drive any benefit from this argument unless the appellant is able to show that the State Transport Authority had jurisdiction to grant variation on 7th March, 1975. Now ‘jurisdiction’ m its restricted and classical sense means the legal competence to pronounce upon a particular subject-matter. The subject-matter in this case is the grant of variation of a route The variation which had been granted by the State Transport Authority on 7th March, 1975 was already shown to be contrary to the legislative prohibition contained in section 58-F (I-D). It follows that the State Transport Authority had acted without legal competence in granting the variation during he interregnum. The order granting variation therefore must be construed as one having been made by the State Transport Authority without jurisdiction and the orders therefore null and void. Being a void order, that must be deemed to have conferred no rights on the appellant and must be construed as being destitute of all legal efficacy. On that basis, this branch of the argument of the appellant must be rejected.

12. There remains the argument of res judicata. It is well settled that the doctrine of res judicata never applies to decisions of Courts and Tribunals rendered without jurisdiction. In Daryao v. Uttar Pradesh, the Supreme Court ruled that finality should be given to “the binding decisions pronounced by Courts of competent jurisdiction”. “Competent jurisdiction is an essential condition of every valid res judicata”. (See Spencer-Bower and Turner on the doctrine of res judicata Second Edition, Page 92). In our case, the otherwise available jurisdiction of the State Transport Authority having been denied to it by section 63-F (1-D) during the period of approval of the draft scheme, the decision of the State Transport Authority dated 7th March, 1975 granting variation is one clearly without jurisdiction. To such decision which confers no rights and enjoys no finality and which has no legal existence in the eye of law, the doctrine of res judicata would not apply. We therefore reject this argument of the appellant. In the result, we affirm the judgment of our learned brother Justice Seth and dismiss this writ appeal with costs. Advocate's fee Rs. 200.

W.A No. 28 of 1977:— For the reason which we have just now given in Writ Appeal No. 28 of 1977 we dismiss this writ appeal also with costs. Advocate's fee Rs. 200.

13. G.S.M

14. Writ appeals dismissed.