Messrs. Swami Motor ... v. Messrs. Raman And Ra..., Madras High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

W.P Nos. 843 of 1961 and 189 of 1962.

Attorney(S)

The Advocate General for Messrs. G. Ramaswami and S.M Subramaniam for the Petrs. in W.P No. 843 of 1961 and for 2nd Respt. in W.P No. 189 of 1962.
Mr. S. Mohan Kumaramangalam for Messrs. M.N Rangachari and S. Palaniswami for 1st Respt in W.P 843 of 1961 and for Petr. in W.P 189 of 1962.
Mr. K Venkalaswami for The Addl. Govt. Pleader for 2nd Respt. in W.P No. 843 of 1961 and for 1st Respt. in W.P No. 189 of 1962.

Judges

Veeraswami, J.

Acts

Motor Vehicles (Madras Amendment) Act, 1964.
S. 43-A(2) of the Motor Vehicles Act, 1939,
Rule 208 of the Motor Vehicles Rules,
provision in Sub-Section (8) of S. 57
S. 48-A of the Motor Vehicles Act,
Sub-Section (8) of S. 57

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Smart Summary

Factual and Procedural Background

These are connected petitions challenging an order of the State Transport Authority dated 12-06-1961 which set aside an earlier order of the Regional Transport Authority (RTA) dated 30-04-1957. The RTA's order had granted a variation of the stage carriage route from "Tanjore to Kumbakonam" to "Tanjore to Koradachery via Kumbakonam and Kodavasal" in favour of Swami Motor Transport (P) Ltd., in respect of two buses (MDO.1959 and MDO.1960).

The Government of Madras, by G. O. Ms. No. 3199 Home dated 16-11-1956, purportedly exercising power under S. 43-A(2) of the Motor Vehicles Act, 1939, directed the RTA to vary the route in respect of two buses. That direction followed three petitions (two by local legislative Assembly members in July 1956 and one dated 6-8-1956 by Swami Motor Transport (P) Ltd.). The RTA relied on the Government Order and granted the variation accordingly.

Raman and Raman (P) Ltd., an objector (not an operator on the route), filed a revision petition to the State Transport Authority (STA) against the RTA's order. The STA set aside the RTA order on two stated grounds: (1) the RTA should not have treated the Government Order as a direction to grant the variation without calling for applications from existing operators and selecting on need and merit; and (2) the RTA was wrong to issue a notice under S. 48-A of the Motor Vehicles Act to Swami Motor Transport (P) Ltd., since Swami itself was the applicant and such notice was unnecessary. The STA remanded the matter to the RTA for fresh disposal according to law.

Legal Issues Presented

Whether the revision petition to the State Transport Authority was competent (maintainability of revision under the statutory scheme).
Whether an appeal lies under S. 64(1) from an order arising under S. 57(8) (i.e., whether the deeming clause in S. 57(8) creates or attracts a statutory right of appeal under S. 64(1)).
Whether the Regional Transport Authority was entitled to rely on the Government Order issued under S. 43-A(2) in granting the variation of route.
Whether issuing a notice under S. 48-A to Swami Motor Transport (P) Ltd. was necessary or proper in the circumstances of an application for variation of a route.

Arguments of the Parties

Swami Motor Transport (P) Ltd. / Learned Advocate General (for Swami Motor Transport)

Contended that the revision petition to the STA was not competent (i.e., sought to quash the STA order on competence grounds).
Argued that an appeal from an RTA order under S. 57(8) lies under S. 64(1)(f) because S. 57(8) contains a deeming provision treating applications to vary a permit condition as applications for a new permit; by parity the right of appeal should attach to such decisions.
Urged that the court could consider questions of jurisdiction as going to the root of the matter and could deal with them under Article 226 of the Constitution.

Raman and Raman (P) Ltd. (objector)

Filed the revision petition before the State Transport Authority seeking setting aside of the RTA's order (i.e., they objected to the grant of the route variation).
In W.P. No. 189 of 1962, argued that because the Government Order (G. O. Ms. No. 3199 Home dated 16-11-1956) on which the RTA had relied has been held invalid, the STA should have quashed the entire proceedings rather than remand for fresh disposal.

State Transport Authority (as characterized in the opinion)

Set aside the RTA order on the grounds that the RTA improperly relied on the Government Order and failed to invite and consider applications from existing operators, and that the RTA unnecessarily issued a notice under S. 48-A to Swami Motor Transport (P) Ltd.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Krishnamurthi v. C. D. A. Transport Co. Ltd., AIR 1953 Mad 321	Rejected the contention that a rule (Rule 208 of the Motor Vehicles Rules) could be treated as conferring a right of appeal by implication where the statute (S. 64(1)) did not provide it.	Used to support the view that a right of appeal must be expressly conferred by statute and cannot be implied from a deeming provision; therefore S. 57(8)'s deeming clause does not create an appeal under S. 64(1).
Attorney General v. Sillem, 1864-10 HL 704	Principle that creation of a new right of appeal is an act requiring legislative authority and cannot be inferred.	Applied to reinforce the proposition that a right of appeal must be expressly provided by statute and cannot arise by implication from subordinate legislation or deeming provisions.
Lion Automobile Service Co. Tirunelveli v. State Transport Authority, Madras, 1958-2 Mad LJ 300	Addressed a case of countersignature; noted to be not in point on the question whether S. 57(8) gives a right of appeal.	The court observed this decision was not applicable to the issue of appealability arising from S. 57(8).
Lakshmanan Chettiar v. Commissioner of Corporation of Madras, ILR 50 Mad 130 : AIR 1927 Mad 130	Established that failure to object to jurisdiction before the lower authority is a bar to obtaining certiorari; an objection to jurisdiction not raised below cannot be raised later by way of certiorari.	Applied to hold that Swami Motor Transport (P) Ltd. could not raise the jurisdictional objection in the High Court when it had not been taken before the State Transport Authority; the objection was barred by acquiescence.
Pannalal Binjraj v. Union of India, AIR 1957 SC 397	In the context of Article 32 proceedings, held that parties who acquiesced in jurisdiction below cannot later challenge that jurisdiction before the Supreme Court.	Relied on to support the proposition that acquiescence in jurisdiction disentitles a party to relief on that ground in a higher forum.
Swami Motor Transport (P) Ltd. v. Raman and Raman (P) Ltd., AIR 1961 Mad 180 (Full Bench)	Held the Government Order (G. O. Ms. No. 3199 Home dated 16-11-1956) relied on by the RTA was extraneous, irrelevant and improper in the circumstances.	Used to support the conclusion that the STA was right to set aside the RTA order which had been passed pursuant to that Government Order.
Swami Motor Transport (P) Ltd. v. Regional Transport Authority, Thanjavur, W.P. No. 96 of 1961 (Mad)	Examined relevancy of Government Orders passed under S. 43A(2) to quasi-judicial proceedings of the RTA and held such orders to be irrelevant or improper if passed pending or after quasi-judicial consideration.	Applied to reinforce that the RTA should not have been guided by the Government Order and that such an order could be improper and in excess of governmental power under S. 43A(2).

Court's Reasoning and Analysis

The court proceeded through several analytical steps, each grounded in the statutory scheme and earlier authorities cited in the opinion:

Statutory framework and questions of remedy:
The opinion distinguishes between revision jurisdiction (S. 64-A) and appeal jurisdiction (S. 64(1)).

The court observed that Section 64-A provides for revision to the State Transport Authority against an RTA order where no appeal lies, while Section 64(1) enumerates specific appeal rights to the prescribed authority (the State Transport Appellate Tribunal) in defined categories.
On whether S. 57(8)'s deeming clause creates an appeal:
The Advocate General argued that because S. 57(8) deems an application to vary a permit condition by inclusion of a new route to be an application for a new permit, the appeal rights attached to permit decisions under S. 64(1) should follow. The court rejected this submission.

The court relied on Krishnamurthi and the principle from Attorney General v. Sillem to hold that a right of appeal must be expressly conferred by statute and cannot be implied from a deeming provision or subordinate rule. Thus, the court construed the deeming provision in S. 57(8) as importing only the procedural steps applicable to grant of permits and not as conferring a statutory right of appeal under S. 64(1).

Accordingly, the court concluded there was no basis for treating the RTA's order as an appealable permit decision under S. 64(1) merely because of S. 57(8).
Competence of the revision petition to the State Transport Authority:
Given the construction above, the court held that the revision petition before the State Transport Authority was competent and sustainable. The court explicitly stated that the objection to competence could not be maintained.
Waiver and acquiescence on jurisdictional objections:
The court further held that an objection to the jurisdiction of the State Transport Authority was not raised before that Authority; therefore Swami Motor Transport (P) Ltd. could not raise it for the first time in the High Court. The court applied the principle in Lakshmanan Chettiar and the Supreme Court decision in Pannalal Binjraj to hold that failure to object below (and conduct amounting to acquiescence) precludes relief by certiorari in the High Court.
Relevancy and propriety of the Government Order under S. 43A(2):
The court relied on its prior Full Bench and related decisions (including Swami Motor Transport v. Raman and Raman and Swami Motor Transport v. RTA Thanjavur) to hold that a Government Order under S. 43A(2) is extraneous or irrelevant to the quasi-judicial consideration by the RTA. The court noted that such an order passed pending or after quasi-judicial consideration would be improper and in excess of the Government's powers under S. 43A(2).

On that basis the STA was correct to set aside the RTA order which had been passed because of the Government Order.
Necessity of notice under S. 48-A:
The court considered the contention that the RTA's issuance of a notice under S. 48-A to Swami Motor Transport (P) Ltd. was erroneous. It agreed with the STA's view that where the matter was simply an application for variation, no notice under S. 48-A to the applicant was necessary. The court treated this point as not substantial and accepted the STA's position.
Effect of invalidity of the Government Order on remand:
Raman and Raman's argument that the invalidity of the Government Order required the STA to quash the entire proceedings was considered. The court rejected that argument: the invalidity only meant that on remand the RTA must pay no regard to the Government Order and must decide the matter afresh under S. 47(1) on the merits and the record before it.

Holding and Implications

Holding:

The court's final disposition was to dismiss both petitions. The court accepted the State Transport Authority's conclusions and remand. The core rulings included:

Both petitions are dismissed.
The revision petition before the State Transport Authority was competent; there is no right of appeal under S. 64(1) arising by implication from S. 57(8)'s deeming clause.
The RTA should not have relied on the Government Order under S. 43A(2) in granting the variation; the STA was correct to set aside the RTA order and remand the matter for fresh disposal.
The notice under S. 48-A to Swami Motor Transport (P) Ltd. was unnecessary in the circumstances.
On remand the RTA must decide the matter afresh under S. 47(1) and must disregard the Government Order when applying its independent quasi-judicial judgment.

Implications:

Direct effect on the parties: The RTA's order granting the route variation (which had been passed on the Government Order) was set aside by the STA and that setting aside was upheld by the High Court; the matter is to be reconsidered afresh by the RTA without regard to the invalid Government Order.
Procedural law implications: The court reaffirmed that a statutory right of appeal must be expressly conferred and cannot be implied from a deeming clause; the deeming provision in S. 57(8) only imports procedural steps applicable to grant of permits and does not create a right of appeal under S. 64(1).
On ancillary points: the court noted (from the opinion) that a Full Bench's earlier view that route was not part of the condition of a permit no longer held the field in view of the Motor Vehicles (Madras Amendment) Act, 1964 — a legislative development mentioned in the opinion.
No costs were awarded to either party ("dismissed, but with costs in neither").

Disposition: Petitions dismissed.

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Messrs. Swami Motor Transports (P.) Ltd., Tanjore v. Messrs. Raman And Raman (P.). Ltd., Kumbakonam And Another.

Advocate General for G. Ramaswami and S.M. Subramaniam, for Petitioners (in W.P. No. 843/61 and for 2nd Respondent in W.P. No. 89/62); S. Mohan Kumaramangalam, for M.N. Rangachari and S. Palaniswami, for 1st Respondent (in W.P. No. 843/61 and for petitioner in W.P. No. 189/62; K. Venkataswami for Addl. Government Pleader for 2nd Respondent (in W.P. No. 843/61 and for 1st Respondent in W.P. No. 189/62).

Judgement

These are connected petitions to quash the same order of the State Transport Authority dated 12-06-1961, setting aside the order of the Regional Transport Authority, dated 30-04-1957, which granted the variation of the route Tanjore to Kumbakonam as Tanjore to Koradachery via Kumbakonam and Kodavasal, in favour of Swami Motor Transport (P) Ltd. The State Transport Authority directed the Regional Transport Authority to dispose of the application of Swami Motor Transport (P) Ltd., afresh according to the law. By G. O. Ms. No. 3199 Home, dated 16-11-1956, the State Government in the purported exercise of its power under S. 43-A(2) of the Motor Vehicles Act, 1939, directed the Regional Transport Authority, Tanjore, to vary the existing route Tanjore to Kumbakonam as Tanjore to Koradachery via Kumbakonam and Kodavasal in respect of two buses. The Government made this order as a result of three petitions, two of them in July 1956 by two members of the local legislative Assembly and the third on 6-8-1956 by Swami Motor Transport (P) Ltd. The Regional Transport authority relied on this Government order and in keeping with it, so was it stated, granted the variation of the route in respect of two buses MDO. 1959 and MDO 1960 of Swami Motor Transport (P) Ltd.

Raman and Raman (P) Ltd. who was an objector and not an operator on the route, filed a revision petition to the State Transport Authority against that order. The State Transport Authority was of the view that the order should be set aside on two grounds (1) That the Regional Transport Authority should not have relied on the Government Order, as a direction to grant the variation in favour of Swami Motor Transport (P) Ltd, but it should have called for applications from all the existing operators on the route Tanjore to Kumbakonam and chosen one or more applicants, according to the need and merits of the case and (2) that Swami Motor Transport (P) Ltd., itself being an applicant for variation, the Regional Transport Authority was wrong in issuing to it a notice under S. 48-A of the Motor Vehicles Act, for which there was no need. Since in its view the Regional Transport Authority did not properly interpret the order of the Government, the State Transport Authority set aside the order and remanded the matter for fresh disposal according to the law.

2. Swami Motor Transport (P) Ltd., in W. P. No. 843 of 1961 seeks to quash the order of the State Transport Authority on the ground that the revision petition was not competent and on the further ground that the State Transport Authority was not right in its view of the propriety and effect of the notice under S. 48A of the Act to Swami Motor Transport (P) Ltd., on the order of the Regional Transport Authority. In my opinion, neither of the grounds can be sustained.

3. Section 64-A provides for a revision to the State Transport Authority against an order of a Regional Transport Authority from which no appeal lies. Section 64(1) allows appeals to the prescribed authority, which is the State Transport Appellate Tribunal in specified cases, two of them being by a person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit or by any condition attached to a permit granted to him or being a local authority or police authority or an association which, or a person providing transport facilities who, having opposed the grant of a permit, is aggrieved by the grant thereof or by any condition attached thereto.

Learned Advocate General for Swami Motor Transport (P) Ltd., submits that an appeal from the order of the Regional Transport Authority under S. 57(8) lies under S. 64(1)(f) relating to the second category of the two cases I have mentioned. Section 57(8) enjoins that an application to vary a condition of a stage carriage permit by inclusion of a new route should be treated as an application for the grant of a new permit : The effect of this is that an application should be disposed of by complying with the procedure for the grant of such carriage permits. According to learned Advocate General, the deeming clause implies also a right of appeal to an aggrieved objector who provides transport facilities, to any condition attached to a permit. In Krishnamurthi v. C. D. A. Transport Co. Ltd., AIR 1953 Mad 321 this court rejected a contention based on Rule 208 of the Motor Vehicles Rules, namely, that the applications made by the appellants in that case should be treated as applications for the grant of a permit as laid down by that rule and if so treated, the refusal to grant the extension should be deemed to be a refusal to grant a permit and it would be an appealable order under S. 64(1)(a). The ground was that as was held in Attorney General v. Sillem, 1864-10 HL 704, the creation of a new right of appeal was plainly an act which required legislative authority but Section 64(1) did not provide for an appeal from an order varying a condition of a permit. Satyanarayana Rao and Rajagopalan, JJ. observed at page 324 :

"If the rule in question does not in terms confer a right of appeal against an order refusing to vary the conditions of a permit, can it be said that it impliedly confers such a right ? As has been pointed out above, a right of appeal must be expressly conferred by a statute and cannot be inferred by implication. It is not within the competence of the rule making authority constituted under S. 68 of the Act to confer a new right of appeal not recognised or granted by S. 64 of the Act."

Learned Advocate General says that what was a rule has since been embodied in Sub-Section (8) of S. 57 and this will make a difference to maintainability of an appeal against such an order under section 64(1)(a) or (f) I am unable to accept the view.

In my opinion, the only effect of the deeming provision in Sub-Section (8) of S. 57 is to attract to the disposal of an application for variation of a condition the procedure applicable to the grant of permits. Section 64(1) does not expressly provide for an appeal from an order under S. 57(8). Nor is or can such a right of appeal be Implied in S. 64(1) merely because an application for variation should be disposed of as if it was for a new permit. There is no room for such an implication. Further with respect I agree with Satyanarayana Rao and Rajagopalaa, JJ. that a right of appeal cannot be inferred by implication. A right of appeal is not a common law right but it springs from express legislative authority, Lion Automobile Service Co. Tirunelveli v. State Transport Authority, Madras, 1958-2 Mad LJ 300 is not in point as that was a case of a counter signature and S. 64(1)(d) gives a right of appeal to an aggrieved person against a refusal to countersign. Nor did W. A. Nos. 48 and 88 of 195S (Mad) decide the point, upon my view I have indicated, I hold that the revision petition before the State Transport Authority was competent.

4. There is also a further point why the petitioners objection to the jurisdiction of the State Transport Authority should fail. The objection was not taken before that Authority itself. There is authority which I respectfully agree that Swami Motor Transport (P) Ltd., cannot be permitted to take the objection at this stage either on the ground of acquiescence or from the standpoint of certiorari, the ground not having been taken before and therefore not dealt with by the State Transport Authority. Its order cannot be quashed on the ground of error. Lakshmanan Chettiar v. Commissioner of Corporation of Madras, ILR 50 Mad 130 : (AIR 1927 Mad 130) decided by a Full Bench of three learned Judges of this Court held :

"Failure to object to jurisdiction before the lower court is a bar to obtaining a writ of certiorari, whether the objection to jurisdiction is based on a pure point of law or based on facts which were or should have been within the knowledge of the applicant during the proceedings in the lower court."

In support of this proposition, the learned Judges relied on a number of English decisions. Dealing with a petition under Article 32 of the Constitution the Supreme Court in Pannalal Binjraj v. Union of India, (S) AIR 1957 SC 397 observed that if the petitioners before it had acquiesced in the jurisdiction of the Income-tax Officers to whom their cases were transferred, they were not entitled to raise the objection before the Supreme Court under that Article. The Supreme Court then observed at page 412 :

"It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this court."

Learned Advocate General however urges that since the question of jurisdiction went to the root of the matter, this court could deal with it under Art.226 of the Constitution. But the point is not so much of the courts power but the conduct of the party who invokes the jurisdiction of this court under that Article.

5. This court in Swami Motor Transport (P) Ltd. v. Raman and Raman (P) Ltd., AIR 1961 Mad 180 (FB) held that the very Government Order relied on by the Regional Transport Authority was extraneous or irrelevant to the proceedings before it and that it was also improper and irrelevant in the circumstances it was made. In Swami Motor Transport (P) Ltd. v. Regional Transport Authority Thanjavur, W. P. No. 96 of 1961 (Mad) this court again examined the question of relevancy of such an order and was of the view that not only an order of the Government passed in exercise of its power under S. 43A(2) would be irrelevant to a quasi judicial consideration by the Regional Transport Authority of grant or refusal of a variation of a condition of a permit by extension of a route but if the order of the Government directing the extension of a route was passed pending quasi judicial consideration of the very question at any stage or after the quasi judicial authority had decided the question, such an order would itself be improper and in excess of the powers of the Government under S. 43A(2) of the Act. It Follows, therefore, that the Transport Authority was right in setting aside the Regional Transport Authoritys order which was passed on the order of the Government under S. 43A(2). In passing, it may be noted that the view of a Full Bench of this court that route was not a part of the condition of a permit and therefore S. 57(8) did not cover a variation of a route by extension, no longer holds the field in view of the Motor Vehicles (Madras Amendment) Act, 1964.

6. The point of Swami Motor Transport (P) Ltd. based on S. 48-A is in my view not substantial. I think the State Transport Authority was correct in its view that it being an application for variation, no notice to Swami Motor Transport (P) Ltd. under that section was necessary. That disposes of W. P. 843 of 1964.

7. W. P. No. 189 of 1962 is by Raman and Raman (P) Ltd. to quash that part of the order of the State Transport Authority remanding the matter to the Regional Transport Authority for fresh disposal. The only ground urged in this petition is that since the entire matter was based on direction in G. O. Ms. No. 3199 Home dated 16-11-1956 and this order has since been held to be invalid, the State Transport Authority ought to have quashed the entire proceedings. I do not think that the result follows from the invalidity of the Government Order. Its only effect is that the Regional Transport Authority, while disposing of the matter afresh, should pay no regard to the said Government Order but apply its mind independently of it to the matter under S. 47(1) and the merits on record placed before it.

8. Both the petitions are dismissed, but with costs in neither.

Petitions dismissed.

Messrs. Swami Motor ... v. Messrs. Raman And Ra...