Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Dr. J.C. Medhi
  • R.K. Goswami
  • Sr. Govt Advocate
  • M.C. Pathak
  • Jr. Govt. Advocate and G.K. Talukdar
Judges
  • Hon'ble Mr. Justice Holiram Deka
  • Hon'ble Mr. Justice G. Mehrotra
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Dr. J.C. Medhi
  • R.K. Goswami
  • Sr. Govt Advocate
  • M.C. Pathak
  • Jr. Govt. Advocate and G.K. Talukdar
Judges
  • Hon'ble Mr. Justice Holiram Deka
  • Hon'ble Mr. Justice G. Mehrotra
Acts
See more information ...
Smart Summary

Structured Summary of the Opinion (Mehrotra, J.)

Factual and Procedural Background

Two petitions (Rules No. 70/60 and No. 71/60) were heard together because they raised common questions of law. Rule No. 70/60 arises from a writ petition under Article 226 filed by Sri Dhananjoy Das. The Regional Transport Authority (RTA), Gauhati, invited applications for a stage carriage permit for the Barpeta–Sarthebari–Darrang route. The petitioner and respondent No. 2 (Sri Biren Das) and others applied. The RTA published applications in the Assam Gazette, invited objections under Section 57 of the Motor Vehicles Act, and granted a stage carriage permit to the petitioner on 18-1-1960. Respondent No. 2's application was rejected by the RTA; he appealed to the Appellate Board, which on 20-4-1960 allowed his appeal, cancelled the petitioner's permit and granted the permit to respondent No. 2. The petitioner challenged that Appellate Board order by writ.

Rule No. 71/60 arises from an application by Md. Majafar Hussain for permits on specified routes (including North Gauhati–Daulasal and Barpeta–Chenga–Tarabari). The RTA granted permits to the petitioner on 30-7-1959 and rejected respondent No. 2 (Sri Sachi Mohan Deka). Respondent No. 2 appealed under Section 64(a) to the Appellate Board, which on 20-4-1960 allowed the appeal, granted him the permit and cancelled the petitioners' permits. That Appellate Board order was likewise impugned by a writ (certiorari) in the present petition.

Legal Issues Presented

  1. Whether the Appellate Board that heard and decided the appeals was properly constituted—specifically, whether the Chairman (Sri R.B. Vaghaiwalla) had been validly appointed in accordance with Section 44 of the Motor Vehicles Act and the constitutional/administrative requirements (Article 166 of the Constitution and the State's business rules).
  2. Whether the manner in which the Appellate Board was constituted (including ad hoc appointment of members by the Chairman under Rule 89) complied with the Act and the Rules framed thereunder, i.e., whether the Chairman could nominate members ad hoc to hear specific appeals.
  3. Whether the Appellate Board violated principles of natural justice by cancelling permits on grounds that were not urged before the Regional Transport Authority or by deciding on materials not placed before the RTA without giving the affected parties adequate opportunity to meet those materials.

Arguments of the Parties

Petitioners' (as argued by Dr. Medhi)

  • The Appellate Board was not properly constituted because Mr. Vaghaiwalla (who acted as Chairman of the State Transport Authority) was not duly appointed Chairman in accordance with the Motor Vehicles Act and Article 166 of the Constitution; the 7th February 1958 notification was defective.
  • The Board which heard the appeals was not constituted in accordance with the Act and the Rules (no ad hoc Board could be constituted; the Members who constituted the Board were not duly appointed as Members).
  • The Appellate Board cancelled permits without giving petitioners sufficient opportunity and on grounds not raised before the Regional Transport Authority; the Board based its decision on materials not on record before the RTA and thereby committed a manifest error of law and breached natural justice.

State / Appellate Board / Respondent (as reflected in affidavits and counter-affidavits)

  • The State produced a supplementary counter-affidavit and records showing the chain of administrative action: a direction of the Chief Minister (4-2-1958) to appoint the Commissioner for Hills as Chairman and subsequent actions by the Secretary (S.K. Mallik) approving the draft notification and ordering its issue, indicating the appointment was made by the State Government.
  • The State argued that the Appellate Board's composition on 20-4-1960 included two members (Sri Gauri Kanta Talukdar and Sri Imdad Ali) who were duly appointed members of the State Transport Authority and were properly nominated by the Chairman to hear the appeal under Rule 89.
  • The Chairman and the Appellate Board asserted that petitioners were given adequate opportunity: memos of appeal were furnished, parties (and counsel) were heard, documents were called for and considered, and the Board's decision was made after hearing parties and considering records.
  • The State also relied on the argument that subsequent administrative delegations (e.g., order dated 7-8-1959 authorising B.C. Choudhury to authenticate instruments in the Transport Department) do not need to be considered for validating the 7-2-1958 notification retrospectively; the court noted this delegation could not validate the earlier notification retrospectively.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dattatreya Moreshwar v. State of Bombay, 1952 SCR 612 (AIR 1952 SC 181) That non-compliance with Article 166(1) and (2) (form and authentication requirements) is directory and not mandatory; omission does not necessarily make executive action illegal but removes the immunity that properly authenticated orders enjoy. The court relied on this authority to hold that the 7-2-1958 notification, though defective in form (not expressed in the name of the Governor and not authenticated), did not by that fact alone render the appointment invalid; the validity could be tested on the materials showing whether the order was in fact made by the Government.
J.K. Gas Plant Manufacturing Co. Ltd. v. Emperor, 1947 FCR 141 (AIR 1947 FC 38) Support for the proposition that form/authentication requirements under the constitutional provisions are not mandatory in a way that automatically invalidates executive action. Quoted in Dattatreya Moreshwar and relied upon as supporting precedent for the directory character of Article 166 requirements; thereby informing the court's approach to the defective notification.
Joseph John v. State of Travancore-Cochin, 1955-1 SCR 1011 (AIR 1955 SC 160) That Article 166(1) and (2) are directory and in practice what is necessary is substantial compliance (requirements met in substance). The court used this authority to reinforce that the defective form of the 7-2-1958 notification would not automatically invalidate the appointment if the substance of the requirement was satisfied by the materials showing State Government action.
Union of India v. T.R. Varma, 1958 SCR 499 (AIR 1957 SC 882) General articulation of principles of natural justice (e.g., opportunity to adduce evidence, hear opponent's evidence, cross-examination, not relying on material without opportunity to explain). The court cited this case for a non-exhaustive statement of natural justice and applied it in assessing whether petitioners were given reasonable opportunity by the Appellate Board; concluded there was no proven denial of such opportunity.
Pioneer Motors Ltd. v. O.M.A. Majeed, (AIR 1957 Mad 48) That an order passed by a Minister cannot itself be treated as an order of the Government; the Minister's direction becomes an order of Government only when the Secretary or authorized officer carries it into effect. The court relied on this to reject the petitioners' contention that the Chief Minister's direction alone made the appointment; it emphasized the Secretary's approval and issuance of notification as the act that made it an order of Government.
Ram Gopal v. Anant Prasad, AIR 1959 SC 851 That an appellate authority must be effective and have the powers necessary to give relief to which appellant is entitled; where appeal lies, the appellate authority has plenary powers to grant relief. The court relied on this to confirm that the Appellate Board could, when allowing an appeal under Section 64(a), cancel a permit granted by the RTA if necessary to give effective relief to the successful appellant.
S. Gopala Reddi v. Regional Transport Authority, North Arcot, AIR 1955 Mad 386 That an appeal challenging a refusal to grant a permit may necessarily involve consideration of the propriety of a grant or renewal to another; the appeal can raise questions about the order granting a permit. Quoted with approval by the court to support the view that the Appellate Board could compare merits and, where appropriate, set aside a previously granted permit to give effect to the successful appellant's claim.
Rohini Kumar Bhattacharjee v. State of Assam, AIR 1959 Assam 183 Authority cited by petitioners for proposition that the Appellate Authority should not decide appeals on new factors not presented to the RTA; head-note language suggested limits on introducing new matters at appeal stage. The court distinguished this authority on the facts: it held that the head-note language must be read in context of that case's facts and that the present case did not show that materials considered by the Appellate Board were not on record or that no foundation had been laid earlier.
Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam, AIR 1958 SC 398 Observations that, although not expressly required, statutory/quasi-judicial authorities should pass "speaking orders" — objective, reasoned decisions after giving parties reasonable opportunity. The court noted these observations and applied them in assessing whether the Appellate Board's order was a speaking order; concluded the Board's order contained reasons and met the requirement of being a speaking order for judicial review purposes.

Court's Reasoning and Analysis

The court proceeded in a structured analysis addressing each principal contention raised by the petitioners.

1. Constitution and Notification under Section 44 of the Motor Vehicles Act:

  • The court identified two statutory essentials under Section 44 for constituting a State Transport Authority: (i) an order of constitution by the State Government and (ii) publication of the constitution in the Official Gazette. Publication in the Gazette is the statutory completion of constitution; the section prescribes no particular form for publication.
  • The 19-9-1957 notification constituted the Authority; a corrective notification dated 7-2-1958 substituted the Commissioner, Hills Division and Appeals, as Chairman in place of R.K. Sharma. That 7-2-1958 notification, however, was not expressed in the name of the Governor nor authenticated in the manner contemplated by Article 166(1)–(2).
  • Relying on Supreme Court authority (Dattatreya Moreshwar; Joseph John), the court accepted that Article 166(1)–(2) requirements are directory, not mandatory: non-compliance does not ipso facto invalidate action, but it allows a court to examine whether the order was in substance an order of the Government.
  • The court then examined the administrative record: a Chief Minister's direction (4-2-1958) to appoint the Commissioner for Hills as Chairman, a secretary's note (S.K. Mallik) directing communication to the Chief Secretary, and an order of the Secretary (11-2-1958) approving the draft notification and authorizing issue. The Secretary was an officer authorised under the business rules to authenticate government orders.
  • On this material the court concluded that the Secretary's approval and the issuance of the notification constituted an order of the State Government; hence the appointment of Mr. Vaghaiwalla as Chairman was valid despite the defective form of the Gazette notification. The court rejected the petitioners' contention that a Minister's direction by itself constituted the order of Government (following Pioneer Motors), observing that the Secretary's action gave the direction the status of an order of the Government.
  • The court noted the State's later order (7-8-1959) delegating authentication to B.C. Choudhury but held that such later delegation could not retrospectively validate the 7-2-1958 notification; nevertheless, the contemporaneous Secretary's actions validated the appointment in substance.

2. Constitution of the Appellate Board and Ad hoc Appointments under Rule 89:

  • Rule 89 prescribes that appeals under clauses of Section 64 shall be decided by the Chairman and two members of the State Transport Authority appointed by the Chairman. It does not require a permanent, standing appellate panel; it contemplates that the Chairman will select two members for the particular appeal.
  • The court found that the two members who deliberated (Sri Gauri Kanta Talukdar and Sri Imdad Ali) were duly appointed members of the State Transport Authority and were validly nominated by the Chairman to hear the appeal. Consequently, the ad hoc selection procedure adopted did not violate the Act or the Rules.
  • The court rejected arguments about potential anomalies caused by ad hoc appointments, noting that a petitioner seeking relief under Article 226 must show the hearing was by a Board not duly constituted; where the Board conforms to Rule 89, the decision cannot be impeached for lack of jurisdiction.

3. Principles of Natural Justice and the Merits Considered by the Appellate Board:

  • The court adopted the Supreme Court's broad statement of natural justice (Union of India v. T.R. Varma): parties must have opportunity to adduce relevant evidence, hear the opponent's evidence, cross-examine witnesses, and not be confronted by materials without an opportunity to explain.
  • Petitioners alleged the Appellate Board decided on grounds not raised before the RTA and did not permit petitioners to meet such allegations. The Board's order and counter-affidavits stated that petitioners and their counsel were heard, memos were furnished, documents called for, and the parties had opportunity to be heard. The Chairman's affidavit specifically asserted that documents were filed and the parties were heard.
  • The court found the petitioners had not substantiated a denial of reasonable opportunity or other breach of natural justice. It also observed that the Appellate Board legitimately compared the relative merits of applicants and, if it found an appellant preferable, could cancel a previously granted permit to give the appellant effective relief (relying on Ram Gopal and S. Gopala Reddi).
  • The court clarified that the Appellate Authority cannot rely on extraneous matters not before it, nor base decisions on fresh materials without giving opportunity to meet them. But it rejected the absolute proposition that the Appellate Authority cannot consider grounds not urged before the RTA, provided the opposing party had knowledge and opportunity to meet those grounds and materials were on the record.

4. Requirement of a Speaking Order:

  • The court acknowledged the authority that administrative/quasi-judicial bodies should issue speaking orders (Nagendra Nath Bora). It held that, while a speaking order need not be a full judicial judgment as defined in CPC, the Appellate Board's order in the present cases contained reasons, reflected consideration of materials on record, and embodied the decision in plain words.
  • The court therefore concluded the Appellate Board's order fulfilled the requirement of being a speaking order for judicial review purposes.

5. Overall Conclusion from the Analysis:

  • Considering the statutory requirements, constitutional provisions, administrative records and relevant precedents, the court found no merit in petitioners' challenges to the constitution of the Appellate Board, the procedure of ad hoc member appointment under Rule 89, the allegation of breach of natural justice, or the contention that the Board lacked jurisdiction to cancel the permits.

Holding and Implications

Holding: The petitions are dismissed. (Final order recorded: "Petitions dismissed." Deka, J. concurred.)

Direct consequences for the parties:

  • Rule No. 70/60 is discharged. Costs were awarded to respondent No. 1 in the sum of Rs. 150/-.
  • No costs were awarded in Rule No. 71/60.

Broader implications: The court applied settled authorities to hold that the form and authentication requirements of Article 166(1)–(2) are directory; substantial compliance and evidence that the order was in fact made by the Government are decisive. The decision confirms (in the present factual context) that:

  • a Secretary's approval and issuance of a notification under delegated authority can convert a Minister's direction into an order of Government;
  • Rule 89 permits the Chairman to nominate members of the State Transport Authority ad hoc to hear particular appeals;
  • the Appellate Board has broad powers to compare merits of applicants and to cancel previously granted permits when necessary to give effective relief to a successful appellant, provided natural justice is respected and materials relied upon are on record or are met with adequate opportunity to explain.

The opinion does not indicate that the court intended to lay down any novel or overriding precedent beyond applying existing Supreme Court authorities to the facts before it. The decision disposed of the petitions on the facts and legal analysis described above.

Reported judgment: Single-judge opinion by Mehrotra, J.; Deka, J. agreed; concluding entry: "Petitions dismissed."

Show full summary ...

    Dhananjoy Das v. Chairman

    Mehrotra, J.:— These two rules can be disposed of by one common judgment as common questions of law have been raised by the counsel for the petitioners. Rule Page: 58No. 70/60 arises out of an application under Article 226 of the Constitution filed by one Sri Dhananjoy Das. The facts necessary for the disposal of this petition are that the Regional Transport Authority, Gauhati invited applications for stage carriage permit for the Barpeta-Sarthebari-Darrang route in the District of Kamrup. The petitioner along with respondent No. 2 and several other persons applied for the grant of the permit.

    2. The applications were duly published in the Assam Gazette and objections were invited under Section 57 of the Motor Vehicles Act (hereinafter called ‘the Act’). The Regional Transport Authority after consideration of the objections filed and the comparative merits of the different applicants granted a stage carriage permit to the petitioner on 18-1-1960. The petitioner alleges that he invested some money after the grant of the permit and deposited the necessary fee.

    3. The respondent No. 2, Sri Biren Das had also made an application for grant of permit on the aforesaid route. His petition was rejected by the Regional Transport Authority. An appeal was preferred by him to the Appellate Board. Notices were issued to the applicant by the Appellate Board. The Appellate Board heard the appeal on 20-4-1960 and was of opinion that the respondent No. 2 should have been preferred to the petitioner. The Appellate Board accordingly allowed the appeal, cancelled the permit granted to the petitioner by the Regional Transport Authority and granted permit to respondent No. 2 in place of the petitioner. It is against this order of the Appellate Board that the petition has been filed. Rule No. 71/60 arises out of an application filed by one Md. Majafar Hussain. This application relates to “North Gauhati-Daulasal and Barpeta extended to Brapeta-Chenga-Tarabari” route. The petitioner along with respondent No. 2 Sri Sachi Mohan Deka and others had applied for grant of stage carriage permit for the aforesaid route. The Regional Transport Authority after consideration of the whole matter on the 30th July, 1959 granted stage carriage permits on the said route to the petitioner and rejected the petition of respondent No. 2.

    4. An appeal was preferred to the Appellate Board by respondent No. 2 against the order of the Regional Transport Authority rejecting his application for permit under Section 64(a) of the Act. The Appellate Board on the 20th April, 1960 heard the appeal and allowed the appeal of respondent No. 2, granted him permit and cancelled the permit granted to the petitioners. The said order has been impugned by the present petition. A writ of certiorari has been claimed by the petitioners quashing the order of the Appellate Board.

    5. Three main points have been raised by Dr. Medhi who appears for the petitioners in these cases. He has firstly urged that the constitution of the Appellate Board was not proper. Mr. Vaghaiwalla who acted as the Chairman of the State Transport Authority was not duly appointed Chairman in accordance with the provisions of the Act. Secondly it was urged that the constitution of the Board which heard the appeal, was not in accordance with the provisions of the Act and the Rules framed under the Act. No ad hoc Board could be constituted. The Members who constituted the Board and heard the appeal, were not duly appointed as the Members.

    6. Thirdly it was urged that the Appellate Board without giving sufficient opportunity to the petitioners cancelled the permit granted by the Regional Transport Authority to the petitioners on grounds which were never urged before the Regional Transport Authority. There was no foundation laid before the Regional Transport Authority for the grounds urged before the Appellate Board. The Appellate Board according to the petitioners committed a manifest error of law in cancelling the permit granted to the petitioners on grounds which were not borne out by the materials on the record and were never urged before the Regional Transport Authority against the petitioners by any of the objectors.

    7. The question of the proper constitution of the Board and the appointment of the Chairman was mainly canvassed before us by the counsel for the petitioners. By a notification issued by the State Government of Assam on the 19th September, 1957 the State Transport Authority of Assam was reconstituted, for three years with effect from August 1957. This notification was issued by the State Government in the exercise of the powers conferred by Section 44 of the Act and has been expressed in the name of the Governor of Assam.

    8. The notification has been signed by Sri S.K Mallick, Secretary to the Government of Assam, Transport and Commerce Department. In this notification Sri R.K Sharma, I.A.S Director of Land Records, Assam, Shillong was appointed as the Chairman of the State Transport Authority. In the note appended to this notification it is stated that the appointment of Sri R.K Sharma, I.A.S as Chairman, State Transport Authority was purely as a temporary arrangement.

    9. By another notification published in the Assam Gazette dated 7th February, 1958 the entries in the previous notification referred to above were corrected and it was stated therein that for the entry “Sri R.K Sharma, Director of Land Records, Assam, Chairman (ex officio)” the “Commissioner of Hills Division and Appeals — Chairman (ex-officio)” was to be read. This notification was issued under the signature of one D. Choudhury, Special Officer, Transport and Commerce Department.

    10. It is not disputed that Mr. Vaghaiwalla was at the relevant time Commissioner of Hills Division and Appeals. The contention of the petitioners' counsel is that the notification of the 7th February, 1958 is not in accordance with the provisions of section 44 of the Motor Vehicles Act. It is further urged that this notification is not in conformity with the provisions of article 166 of the Constitution. It neither purports to be in the name of the Governor nor has it been authenticated by an officer who has been delegated the power to do so under the rules framed for the division of the work amongst the various departments and the Secretaries by the Governor of Assam.

    11. The State Transport Authority is constituted under the provisions of Section 44 of the Act, the relevant portion of which reads as follows:

    “44.(1) The State Government shall, by notification in the Official Gazette, constitute for the Page: 59State a State Transport Authority to exercise and discharge the powers and functions specified in sub-section (3), and shall in like manner constitute Regional Transport Authorities………

    (2) A State Transport Authority or a Regional Transport Authority shall consist of such number of officials and non-officials as the State Government may think fit to appoint; but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking shall be appointed as or continue as a member of a State or Regional Transport Authority……..”

    12. For the proper constitution of a State Transport Authority, two conditions are essential under Sec. 44. Firstly that the State Transport Authority should be constituted by the State Government and secondly that the constitution should be notified in the official gazette. On the 19th September, 1957, the Assam Government notified in the Assam Gazette the constitution of the State Transport Authority.

    13. Mr. Vaghaiwalla was not mentioned in that notification as constituting the Chairman or one of the members of the State Transport Authority. There was however another notification issued on 7th February, 1958 by which the previous notification was modified and in place of Shri R.K Sarma, Director of Land Records as Chairman, the Commissioner of Hills Division and Appeals was substituted. There was therefore a notification issued in the Assam Gazette to the effect that the Commissioner of Hills Division and Appeals was appointed the Chairman of the State Transport Authority.

    14. Dr. Medhi contends that an appointment is not complete unless it is notified in the Assam Gazette. The publication in the official gazette completes the constitution of the State Transport Authority. There may be an order constituting the State Transport Authority prior to its publication in the official gazette; but the order by itself, though passed by the Government, will not be enough for the constitution of the State Transport Authority.

    15. He further contends that if Section 44 of the Act requires for the completion of the constitution of the State Transport Authority, publication in the official gazette, the publication must necessarily appear in the name of the Governor and must be authenticated by a Secretary who is empowered to do so under the business rules framed by the Governor. There is, to my mind, no warrant for such an interpretation of Section 44.

    16. From the perusal of the Section itself, it is clear that the two essential requirements for the proper constitution of the State Transport Authority are — (1) the order of the constitution by the Government and (2) it? publication in the official gazette. If the fact of constitution of the State, Transport Authority is published in the Gazette, it is a sufficient compliance with Section 44 of the Act. The section does not prescribe any particular form for publication.

    17. It cannot be denied in the present case that the appointment of the Commissioner of Hills Division and Appeals as Chairman of the State Transport Authority was notified. The defect, if any, was in the form of the notification; but there is no total absence of the notification in the official gazette. The second requirement therefore of Sec. 44 was complied with in the present case. The main question however to be considered is whether the order appointing the Commissioner of the Hills Division as the Chairman was passed by the State Government.

    18. The contention of Dr. Medhi is that the order appointing Sri Vaghaiwalla as the Chairman of the State Transport Authority can be regarded as an order by the State Government only if it has been passed by the Governor or any officer who has been delegated the power under the business rules framed by the Governor in the exercise of his powers under Article 166(3) of the Constitution. He further contends that unless the executive action of the Governor is expressed to be taken in the name of the Governor, the action of the Government will be invalid and cannot foe regarded as an action by the Government at all.

    19. He further urges that the order is to be authenticated in the manner specified in the rules to be made by the Governor. It is necessary to examine the various provisions of the Constitution to appreciate the argument advanced by the petitioner. Article 154 of the Constitution provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Clause (2) of Article 154 lays down that:

    “Nothing in this article shall:

    (a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or

    (b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.”

    20. Article 161 reads as follows:

    “The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”

    21. Article 162 is as follows:

    “Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:

    Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.”

    22. The next relevant provision is Article 166 which reads as follows:

    “166.(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.

    (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so audienticated shall not be called in question on the ground that Page: 60it is not an order or instrument made or executed by the Governor.

    (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.”

    23. The Governor of Assam has framed business rules in the exercise of his powers under Article 166(3) of the Constitution. Rules 5 and 6 deal with the allocation of the business amongst the Ministers and are as follows:

    “5. The Governor shall on the advice of the Chief Minister allot among the Ministers the business of the Government by assigning one or more Departments to the charge of a Minister:

    Provided that nothing in this Rule shall prevent the assigning of one Department to the charge of more than one Minister.

    (6) Each Department of the Secretariat shall consist of the Secretary to the Government, who shall be the official head of that Department, and of such other officers and servants subordinate to him as the State Government may determine:

    Provided that:

    (a) more than one Department may be placed in charge of the same Secretary;

    (b) the work of a Department may be divided between two or more Secretaries.”

    24. Rule 12 provides as follows:

    “Every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under-Secretary or an Assistant Secretary or such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument.”

    25. The power to sign orders has been delegated to the Secretaries of the different Departments. Section 3(60) of the General Clauses Act, 1897 defines the State Government as respects anything done or to be done after commencement of the Constitution (7th Amendment Act, 1956) to mean in a State the Governor and in an Union Territory the Central Government.

    26. According to this definition of the State Government, the order required to be passed by the State Government under the Act has to be passed by the Governor or by the authority having delegated power to do so. The position which emerges from the examination of the aforesaid provisions can be summarised as follows:— The Governor is the head and symbol of the executive administration. An order issued by his authority is stated to be an order of the Government.

    27. The function is discharged by the Governor with the aid and advice of the Ministers who are collectively responsible for the advice which they tender. Under the business rules, there is allocation of business of different Ministers and each Minister is assigned some department in regard to which the primary responsibility rests with him for the advice. Any advice given and decision taken by the Minister will not constitute order of the Government.

    28. The decision taken by the Minister and the advice given to the Governor acquires the quality of an order by the Government only when it is embodied and issued on the authority of the Governor. Under the business rules, the Secretaries are directed to carry out the orders of the Ministers and there is thus a delegation of the functions of the Governor. Thus when the advice is carried out by the issue of an order of the Secretary, it receives, authority of the Governor and becomes an order of the Government.

    29. Article 166(1) prescribes the form to the order. It has to be expressed and to be taken in the name of the Governor and Article 166(2) provides for the authentication of such orders. In this case, the notification of 7th February, 1958 by which the Commissioner of Hills Division and Appeals was appointed the Chairman of the State Transport Authority, is not expressed in the name of the Governor, nor has it been authenticated by any Secretary who is empowered under the business rules made by the Governor in the exercise of his powers under Article 166(3) of the Constitution.

    30. In the supplementary counter-affidavit filed on behalf of the State, an order dated 7th August, 1959 has been filed under which Sri B.C Choudhury, Special Officer to the Government of Assam in the Transport and Commerce Department has been authorised to sign an instrument made or executed in the name of the Governor of Assam for the aforesaid Departments and his signature is to be deemed to be the proper authentication of such orders or instruments.

    31. By virtue of this order it is contended by the State Government that Sri B.C Choudhury was authorised to authenticate the orders issued in the Transport and Commerce Department. Without going into the validity of the delegation of the authority to Sri B.C Choudhury under this order, it is sufficient to point out that this order is dated 7th August, 1959 and cannot be given retrospective effect to regularise the notification issued under his signature on the 7th February, 1958.

    32. The result is that the notification of the 7th February, 1958 does not comply with the requirements of Article. 166(1) and (2) of the Constitution. The question however still remains to be considered as to what is the effect of the non-compliance of Article 166(1) and (2). It has now been settled by two decisions of their Lordships of the Supreme Court to which I shall refer presently that the requirements of Article 166(1) and (2) are not mandatory; they are merely directory.

    33. The only consequence of failure to comply, with the two requirements is that the fact whether any such order has or has not been passed by the Governor or the Government is examinable by the Court and the immunity from being called in question in a court of law which attaches to an order or, instrument properly audienticated and expressed in the name of the Governor is not available to such orders.

    34. In the case of Dattatreya Moreshwar v. State of Bombay reported in 1952 SCR 612 : (AIR 1952 SC 181), dealing with an executive decision taking a form of detention order under Section 11(1) of the Preventive Detention Act it was held that an omission to make and authenticate that executive decision Page: 61in the form mentioned in Article 166 will not make the decision itself illegal for the provisions in that Article are merely directory and not mandatory.

    35. It was observed as follows in the aforesaid case:— “This is the purpose which underlies these provisions and I agree with the learned Attorney-General that non-compliance with the provisions of either of the clauses would lose the protection which it would otherwise enjoy, had the proper mode for expression and authentication been adopted. It could be challenged in any court of law even on the ground that it was not made by the Governor of the State and in case of such challenge the onus would be upon the State authorities to show affirmatively that the order was in fact made by the Governor in accordance with the rules framed under article 166 of the Constitution. This view receives support from a pronouncement of the Federal Court in J.K Gas Plant Manufacturing Co. Ltd. v. Emperor, 1947 FCR 141 : (AIR 1947 FC 38)”.

    36. The other case is Joseph John v. State of Travancore-Cochin reported in 1955-1 SCR 1011 : ((S) AIR 1955 SC 160). This case arose out of an order passed by the Travancore Cochin Government removing the petitioner from service. It was held by their Lordships of the Supreme Court that the provisions of Article 166(1) and (2) are directory and not mandatory and in order to determine whether there has been compliance of the said provisions, all that is necessary to see is that the requirements of the sub-section are met in substance.

    37. The result of the examination of these authorities is that the notification of the 7th February, 1958, though defective in form will not render the order of the Government, appointing Mr. Vaghaiwalla as the Chairman invalid. It has therefore to be examined in the light of the materials on the record whether apart from the notification of the 7th February, 1958, Mr. Vaghaiwalla was appointed Chairman in accordance with the rules prescribed under Article 166 by the State Government.

    38. Along with the supplementary affidavit, the State Government has filed an extract of the order from Notification No. TCMV.56/55/199 dated 19th September, 1957, issued by the Secretary, Transport. The correctness of this copy cannot be disputed. From the perusal of this extract it is evident that on the 4th February, 1958, the Chief Minister who was in charge of the Transport portfolio, directed that the Commissioner for Hills may be appointed Chairman of the State Transport Authority in the vacancy caused by the relief of the Director of Land Records as the work is very light.

    39. Below this order, there is a note by Shri S.K Mallik, Secretary to the relevant Department that this order should be sent to the Chief Secretary for his information. By another order of the same date signed by Shri S.K Mallik, who was undisputedly authorised under the business rules to authenticate and sign the order of the Government directing the office to issue notification accordingly.

    40. The draft of notification was put up before him for approval by Shri B.C Choudhury and on the 11th February, 1958 Shri Mallik approved the draft inasmuch as he has ordered that as the Chief Secretary has already “vettoed it”, no other reference was necessary and the office was asked under the same order to issue the notification. This order by Shri Mallik on the 11th February, 1958 in effect approved the draft for publication and thus the order appointing Mr. Vaghaiwalla as the Chairman of the Transport Authority under the order of the 7th February, 1958 was in effect signed by Shri S.K Mallik. The appointment was thus made by the State Government.

    41. Some argument was advanced by the State Counsel that the order of the Chief Minister dated 4th February, 1958 was the valid order appointing Mr. Vaghaiwalla as the Chairman. This argument was countered by the Counsel for the petitioners and reliance was placed on the case of Pioneer Motors Ltd. V. O.M.A Majeed reported in (S) AIR 1957 Mad 48, wherein it was held that an order passed by the Minister cannot be treated as an order of the Government. He could only issue a direction to the Secretary which of course has to be carried out; but it is only when the Secretary or those under him carry out this duty that an order of Government results.

    42. As I have already pointed earlier the draft order was approved by the Secretary. The advice given by the Chief Minister was carried out by the Secretary and the order became an order of the State Government thereafter. There is, thus, no force in the contention of the petitioner that the appointment of Mr. Vaghaiwalla as the Chairman of the State Transport Authority was invalid.

    43. The next point urged was that the provisions of the Act and rules framed thereunder do not justify any ad hoc appointment of the members of the Board to hear the appeals. In para 37 of the petition filed in Rule No. 70/60, it is stated by the petitioner that Rule 89 requires the Chairman to appoint two members of the State Transport Authority as the members of the Appellate Authority, but no such appointment has been made uptil now.

    44. The Chairman for each individual meeting calls upon some members of the State Transport Authority to attend the meeting and with them decides the appeals. In para 38 it has been asserted that in the meeting held on 20-4-60 in which the present appeal was disposed of, the Chairman called three of the members of the State Transport Authority besides him and all the four members in combined consultation disposed of the appeal.

    45. The members were the Chairman, Mr. Imdad Ali, one of the Deputy Inspectors General of Police, Assam; Mr. C.S Booth and Mr. Gauri Kanta Talukdar. The procedure adopted by the Government has been challenged by the petitioner. In the counter-affidavit it is stated that the only two members who participated in the deliberation of the meeting were Sri Gauri Kanta Talukdar and Sri Imdad Ali who had been duly appointed members of the Board by the Chairman.

    46. Rule 89 of the rules framed by the State of Assam under the Motor Vehicles Act Rules is as follows:— “89. Appeals against the orders of the Regional Transport Authority—

    (a) The authority to decide an appeal against the orders of the Regional Transport Authority under clauses (a), (b), (c), (d), (e) and (f) of Sec. 64 of Page: 62the Act shall be the Chairman and two members of the State Transport Authority appointed by the Chairman. Any person preferring an appeal against the order of the Regional Transport Authority in respect of such matters shall, within thirty days of the receipt of such order, do so in writing to the Secretary of the State Transport Authority in the form of a memorandum in duplicate setting forth concisely the grounds of objection to the order of the Regional Transport Authority accompanied by certified copy of that order which shall be granted free.

    (b) Upon receipt of an appeal in accordance with sub-rule (a), the appellate authority shall appoint a time and place for hearing of the appeal giving the appellant not less than 30 days' notice and shall in that case order the appellant such fee, not exceeding Rs. 25/- as the appellate authority may specify.

    (c) No further appeal shall lie against any order of the appellate authority constituted under sub-rule (a).”

    47. By the notification of the 19th September, 1957 issued in the name of the Governor of Assam, both Sri Imdad Ali, one of the Deputy Inspectors General of Police and Sri Gauri Kanta Talukdar were appointed members of the Transport Authority. They were duly appointed by the Chairman to hear the appeal. It cannot be said that the appointment of these persons as members of the Board for hearing the appeal was illegal. Rule 87(89?) does not contemplate appointment of any permanent Board to hear all the appeals.

    48. Under Rule 89 authority to decide an appeal under Section 64 of the Act is to be Chairman and two members of the State Transport Authority appointed by the Chairman. The two members, who along with the Chairman decided the present appeal were members of the State Transport Authority and were appointed by the Chairman, to hear the appeal. Under Sec. 64, the appeal is to be heard by the prescribed authority and the present authority according to Rule 89 is the Chairman and the two members of the State Transport Authority nominated by the Chairman for the purposes of hearing the appeal.

    49. There is nothing on the plain language of R. 89 to exclude the ad hoc appointment of the members by the Chairman for the purpose of hearing an appeal. We are familiar with such procedure else where also. There is a list of jurors and from among them the jury men are selected at the time of trial. Rule 89 contemplates similar procedure. There is a State Transport Authority constituted under Section 44 of the Act and the Chairman can select any two members out of the members of the State Transport Authority for hearing a particular appeal.

    50. It was vehemently argued by Dr. Medhi that this consideration will lead to various anomalies. The appeal may be filed before one particular Board and may be heard by another Board. There is no substance in this contention. The appeal is firstly filed before the Secretary and secondly before the petitioner can get a relief under Article 226 of the Constitution, he has to show that the hearing of the appeal was by a Board not duly constituted. If the Board which heard the appeal and decided the matter was properly constituted under the provisions of Rule 89, the decision cannot foe impugned on the ground that it is without jurisdiction.

    51. Lastly it was urged that there was non-compliance with the principles of natural justice in disposing of the appeals. It is not possible to lay down exactly as to what are the rules of natural justice: but as observed by their Lordships of the Supreme Court in the case of Union Of India v. T.R Varma reported in 1958 SCR 499 at p. 507: ((S) AIR 1957 SC 882 at p. 885) that broadly and without intending it to be exhaustive, the rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.

    52. In rule No. 70 the observance of the rule of natural justice has been argued on two grounds. Firstly that the allegations made against the petitioner by the respondent No. 2 in his appeal before the Appellate Board were never raised before the Regional Transport Authority and that these allegations are vague and secondly that the petitioners had categorically denied these allegations and prayed for filing documentary evidence against them and the fitness of respondent No. 2; but no such opportunity was given and these allegations were not established by any document or any other evidence.

    53. The Appellate Board in its order dealing with the appeal of Sri Biren Das has observed that he seems to be a fit person as he has experience in this line of business and has sufficient finance as to manage a work-shop. He, therefore, appears to be a suitable person to be given a Stage Carriage Permit. On these findings his appeal was allowed. Having allowed his appeal, the Appellate Board only compared the respective merits of the other claimants and preferred him to any of the rival claimants.

    54. In the earlier part of its order, the Board had examined the merit of Sri Dhananjoy Das and observed that “after a careful consideration of the merits and demerits of the appellants and the respondents, we find that this respondent i.e Dhananjoy Das does not appear to be particularly a desirable type as to be preferred to at least one of the three appellants, namely, Sri Biren Das, who has nothing against his character and antecedents.”

    55. In para 9 of the counter-affidavit filed on behalf of opposite party No. 2, it is stated that the petitioner was given an opportunity to refute the allegations made against him and to prove any allegation against the respondent to the present petition. He was heard by the Board where he himself and his advocate were present and represented their case. Nothing was alleged at the time of argument against the opposite party No. 2.

    56. In the counter-affidavit filed by Shri R.B Vaghaiwalla it is categorically stated that the respondent No. 2 did file some document and prayed for calling for some documents from Regional Transport Authority which were called for. The allegation of the petitioner that there was no document to Page: 63support the case of the respondent is thus refuted by the Chairman of the Board in his counter-affidavit.

    57. In para 5 of the counter-affidavit of the Chairman it is again asserted that the decision was made after considering fully the allegations and the documents on record in support thereof and having heard the parties through their lawyers. In para 8 it is further stated that the copies of memos of appeals were furnished to the petitioner and he was given full opportunity of being heard, and he was in fact heard through his lawyer.

    58. In view of these allegations the petitioner in our opinion has failed to substantiate the allegation that no reasonable opportunity was given to him and that there was any violation of principles of natural justice in deciding the appeal. It is not disputed that the Appellate Authority has jurisdiction to go into the respective merits of the claimants to the permit and that in allowing the appeal of the petitioner whose application was rejected by the Regional Transport Authority, the Appellate Board has jurisdiction to cancel the permit of another applicant granted by the Regional Transport Authority.

    59. In this connection however, reference may be made to the case of Ram Gopal v. Anant Prasad reported in AIR 1959 SC 851. In this case it was contended that in an appeal filed under clause (a) of Sec. 64 it was not open to cancel the permit granted unless the case was such that an appeal under clause (f) should also lie. This contention was repelled and it was observed as follows:

    “If an appeal lies under any of the other clauses, that of course must be an effective appeal and the appellate authority must therefore have all powers to give the relief to which the appellant is found entitled.”

    60. In this case the following observation in the case of S. Gopala Reddi v. Regional Transport Authority, North Arcot reported in AIR 1955 Mad 386 at p. 387 was quoted with approval:

    “The appeal was, in our opinion, perfectly competent as an appeal against the order of the Regional Transport Authority, refusing to grant a permit. The fact that such an appeal involved an attack on the order granting a renewal of a permit to the 4th respondent would not prevent the appeal being what it was, viz., an appeal against a refusal to grant a permit to the appellant. The Central Road Traffic Board erred in the appeal to consider the merits of the order granting renewal of the 4th respondent's permit. Indeed, the first question which had to be determined in the appeal filed by the appellant would be the propriety of the action of the Regional Transport Authority in granting renewal to the 4th respondent. The filing of the appeal by the appellant set at large the order of the Regional Transport Authority granting the renewal.”

    61. Under the provisions of the Act and the rules framed thereunder, the appellate body has the amplest power and its jurisdiction is not limited or circumscribed. That being so, the Appellate Board could, on an appeal filed by a person whose petition has been rejected by the Regional Transport Authority consider his suitability and having come to the conclusion that his application should have been granted can compare the respective merits of the various applicants and decide whether he should be preferred to any of the persons to whom the permit has been granted or not.

    62. If the Board finds that he is preferable to any of the persons to whom the permit has been granted, by the Regional Transport Authority after considering their respective merits, it can, in order to give relief to the appellant, cancel the permit granted, to the respondent. It was then urged that the. Appellate Board was only competent to decide the matter on the materials before it and it had no power to consider the points raised before it unless they were raised before the Regional Transport Authority.

    63. I do not think that the proposition can be accepted as stated by the counsel for the petitioner. The power of the Appellate Authority as it has to function as a quasi-judicial capacity, is no doubt confined to decide the appeal on the materials before it. It cannot take extraneous matters into consideration, nor can it base its decision on fresh materials unless the person against whom it is sought to be utilised has been given opportunity to meet these materials, or to explain them.

    64. But there is no warrant for the proposition that the Appellate Authority is not competent to consider the grounds which were never urged before the Regional Transport Authority. If the grounds were raised to the knowledge of the respondent and respondent had full opportunity to meet them, there is no bar to the Appellate Authority, in my opinion act allow the appellant to raise the points which might not have been urged by him before the Regional Transport Authority.

    65. Reliance has been placed by the counsel for the petitioner in support of his contention on the case of Rohini Kumar Bhattacharjee v. State of Assam reported in AIR 1959 Assam 183. Particular reference was made to the following passage under the head note of the learned, C.J at page 188.

    “It is not open to the Appellate Authority to go into the new factors which were never presented to the Regional Transport Authority and decide the appeal on that basis. The law has provided an appropriate stage where the matter could be canvassed at the instance of the parties concerned, and if advantage is not taken of that earlier, the Appellate Authority cannot, of its own accord, or even at the instance of a party interested, make out a new case for the parties and decide on that assumption. Such a procedure is not only unwarranted in law but leads to unhealthy precedents.”

    66. That case is distinguishable on the facts and the observations quoted under the head note have got to be read in the context of the facts of that case. It should however be pointed out that when the body of the judgment is examined, a different complexion is given to the words quoted in the head note. The following observations quoted from the body of the judgment will show that the head note relied upon by the counsel for the petitioner does not support the wide contention raised by him.

    “We are however, faced with the situation that when the applications were duly notified by the Regional Transport Authority and published according to law, respondent or anybody else did not raise Page: 64any objection to the entertainment of the applications of the petitioner on the grounds now alleged. Even if a representation on these grounds had been made before the Regional Transport Authority beyond the period fixed, it was open to the said Authority to reject the same……The Appellate Authority has for the first time taken notice of these allegations or objections, for which there was no foundation 011 the record. We are informed that in fact the Appellate Authority itself did not collect any material on the point but left it to the respondent concerned to produce some papers before it. There was no guarantee about the authenticity of those papers, but it is not for us to pronounce upon the merits or otherwise of the objections which have been seriously controverted on behalf of the petitioner. We are only concerned to note whether it was open to the Appellate Authority to go into these new factors which were never presented to the Regional Transport Authority and decide the appeal on that basis. We think that there being no foundation laid for these objections by any party at the earlier stage, and these materials being not only on the record before the Appellate Authority, it has no jurisdiction to go into them and decide upon their basis that the petitioner was not entitled to the grant of a permit. There must be some finality to objections being raised.”

    67. Three reasons are given by their Lordships in this case; firstly that no foundation was laid for the objections by any party at the earlier stage. Secondly that the materials on which the Appellate Authority relied were not duly on the record before it and thirdly there must be some finality attached to the objections being raised. This Court in the case referred to above, did not, to my mind, take the view, contrary to the view which we are taking in the present case.

    68. When this case lays down that the foundation should be laid down for the objection at an earlier stage, it does not necessarily mean that the objections raised before the Appellate Authority should precisely be the same which were raised before the Regional Transport Authority. If it was urged against a person who has been granted a permit by any of the objectors that he was not preferable to the objector, sufficient foundation had been laid for the objection before the Regional Transport Authority.

    69. In the present case, it has not been shown the materials which were considered by the Appellate Authority were not duly on record before it. Nothing has been pointed out to us which will show that the Appellate Authority has relied upon materials which were not duly before it. It was lastly contended that as the Appellate Authority has to act in a quasi-judicial capacity and its order is examinable by this Court, it should be a speaking order.

    70. Reliance was placed on the following observations of their Lordships in the case of Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam, reported in AIR 1958 SC 398 at p. 406.

    “Though the Act and the rules do not, in express terms, require reasoned orders to be recorded, yet, in the context of the subject matter of the rules, it becomes necessary for the several authorities to pass what are called ‘speaking orders.’ Where there is a right vested in an authority created by statute, be it administrative or quasi-judicial, to hear appeals and revisions, it becomes its duty to hear judicially, that is to say, in an objective manner, impartially and after giving reasonable opportunity to the parties concerned in the dispute to place their respective cases before it.”

    71. These observations in my opinion do not in any way support the contention of the petitioner.

    72. It cannot be denied that the order is to be a speaking order as the Appellate Authority has to decide judicially and its decision is amenable to a writ of certiorari by this Court; but it cannot be said in the present case that the order is not a speaking order.

    73. The order contains reasons, it embodies the decision of the authority in plain words after consideration of the materials on the record and I fail to see how this order cannot be regarded as a speaking order. Speaking order does not necessarily mean a judgment as defined under the Code of Civil Procedure. It has also not been shown by the petitioner that the Authority did not hear the case judicially that is to say, in an objective manner reasonably and after giving reasonable opportunity to the parties to represent their case before it. In the result therefore, in my opinion, there is no force in these petitions and they are accordingly rejected. Rule No. 70/60 is discharged with costs to the respondent No. 1 which we assess at Rs. 150/-. As a common argument has been advanced in both the cases, no cost is awarded in Rule No. 71/60.

    74. Deka, J.:— I agree.

    LD/R.G.D

    75. Petitions dismissed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Dhananjoy Das v. Chairman
    (Sep 9, 1960)