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Case Number

O.P No. 159 of 1957

Advocates

For the Appellant: Government Pleader
For the Respondent: 1st V. K. K. Menon C. S. Padmanabha Iyer
For the Respondent: 2nd

Judges

Raman Nayar, J.

Acts

Madras Act XXXIX of 1954, Section 64 of the principal Act was renumbered as sub-s. (1)
SECTION 64 MOTOR VEHICLES ACT
Section 64-A of the Central Act 100 of 1956.
sub-section (2) of Section 64
sub-s. (2) of Section 64

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner is a bus operator who in August 1955 obtained a permit from the Regional Transport Authority, Kozhikode, to run a bus from Kozhikode to Sultan's Battery. The second respondent and other applicants, who were unsuccessful, appealed. The State Transport Tribunal, Madras (the appellate authority constituted under Section 64 of the Motor Vehicles Act as amended by Madras Act XXXIX of 1954) declared the petitioner ineligible and remanded the matter to the Regional Transport Authority for fresh disposal considering the remaining applicants' claims.

While the matter remained pending, the Regional Transport Authority granted two successive temporary permits to the second respondent and, on 2-3-1957, granted a third temporary permit to the petitioner “for a period of four months from 4-3-1957 or till a pucca permit is issued for the route whichever is earlier.”

After the formation of Kerala State, by S.R.O. No. 5 dated 7-1-1957 the District Judge, Trichur, was appointed as the State Transport Appellate Tribunal to hear and dispose of appeals under Section 64. The second respondent filed a revision petition under Section 64(2) of the Act before this Tribunal challenging the grant of the temporary permit to the petitioner. The Tribunal set aside the grant on the ground that the grant was prohibited by the first proviso to Section 62 of the Act as amended by Central Act 100 of 1956.

The petitioner brought the present writ petition under Article 226 of the Constitution seeking to quash the Tribunal's order. The principal contention advanced was that sub-section (2) of Section 64 (as introduced by Madras Act XXXIX of 1954) had become void in view of the subsequent enactment of Section 64-A by Central Act 100 of 1956, invoking Article 254 of the Constitution.

Legal Issues Presented

Whether sub-section (2) of Section 64 of the Motor Vehicles Act, 1939, as introduced by Madras Act XXXIX of 1954, has become void by reason of the enactment of Section 64-A of Central Act 100 of 1956 (i.e., whether there is repugnancy under Article 254 of the Constitution).
Whether the Tribunal (appointed by S.R.O. No. 5 dated 7-1-1957) possessed revisional jurisdiction under Section 64(2) given the terms of the notification and rules constituting it.
Whether the grant of the temporary permit to the petitioner on 2-3-1957 was prohibited by the first proviso to Section 62 of the Act as amended by Central Act 100 of 1956.
Whether the second respondent had an appeal under sub-section (1) of Section 64 such that revision under sub-section (2) would be excluded.

Arguments of the Parties

Petitioner's Arguments

Sub-section (2) of Section 64 (as introduced by Madras Act XXXIX of 1954) has become void because Section 64-A enacted by Parliament (Central Act 100 of 1956) covers the field and is repugnant, invoking Article 254(1) of the Constitution.
The notification S.R.O. No. 5 dated 7-1-1957 and the rule (R.3(kk)) constituting the State Transport Appellate Tribunal did not refer to any revisional power; therefore the Tribunal should only hear appeals and not revisions.
The grant of the temporary permit to the petitioner was not prohibited by the first proviso to Section 62, contrary to the Tribunal's view.
The second respondent had a right of appeal under sub-section (1) of Section 64, and accordingly no revision under sub-section (2) was competent.

Second Respondent / Tribunal Position (as reflected in the opinion)

The Tribunal set aside the grant of the temporary permit on the ground that the grant was prohibited by the first proviso to Section 62 as amended by Central Act 100 of 1956.
The Tribunal proceeded on the basis that it had jurisdiction under Section 64(2) to call for records and pass appropriate orders in respect of Regional Transport Authority orders where no appeal lay.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tika Ramji v. State of U.P., AIR 1956 SC 676	Explains the exact connotation of “repugnancy” under Article 254 and cites the principle that if a competent legislature intends to cover the whole field, that is a conclusive test of inconsistency with another legislature entering the same field.	The court relied on paras. 26–33 of this judgment to frame the test of whether Parliament intended Section 64-A to be a complete and exhaustive code displacing the State provision; on that basis the court examined whether the language of S.64-A indicated exclusivity.
Clyde Engineering Co. Ltd. v. Cowburn, (1926) 37 CLR 466	Quoted (Isaacs, J.) for the rule that where a competent legislature expressly or implicitly evinces an intention to cover the whole field, another legislature's law entering the same field is inconsistent.	The court cited this observation (approved in Tika Ramji) as authority for the proposition that intention to cover the whole field is decisive of repugnancy; used it as part of the analytical framework to test S.64-A's scope.
G.P. Stewart v. Brojendra Kishore Roy, AIR 1939 Cal 628	Reiterates the same principle from English and Canadian cases: if the dominant law (Parliamentary law) evinces intention to cover whole field, subordinate law is repugnant; whether such intention exists depends on the language of the dominant law.	The court quoted this authority to support the inquiry into whether Parliament intended S.64-A to be exhaustive; it applied the principle and concluded the language of S.64-A did not demonstrate exclusivity.

Court's Reasoning and Analysis

The court proceeded in sequential analytical steps, applying the legal test for repugnancy and resolving the remaining objections:

The court noted that repugnancy requires either an express or implied inconsistency between laws or an intention by the dominant legislature to occupy the whole field so that subordinate legislation cannot operate concurrently. It observed there is no express inconsistency between sub-section (2) of Section 64 (state amendment) and Section 64-A (central enactment).
The court observed that concurrent exercisable revisional powers are possible and gave example (Code of Criminal Procedure concurrent revisional powers of High Court, Sessions Judge, District Magistrate). It concluded concurrent operation of S.64(2) (the Tribunal under the State enactment) and S.64-A (the State Transport Authority under the Central enactment) is feasible and satisfies the “harmonious coexistence” test.
Relying on the tests and authorities cited (Tika Ramji; Clyde Engineering; G.P. Stewart), the court examined whether Parliament intended S.64-A to be a complete, exhaustive, or exclusive provision for revision of Regional Transport Authority orders. The court found nothing in the language of S.64-A that either expressly or impliedly indicated such an intention. In particular, S.64-A did not say revisional jurisdiction was to be exercised only by the State Transport Authority nor did it indicate that no other remedy than an appeal under S.64 or revision under S.64-A was open.
The court invoked the presumption that Parliament was aware of the existence of S.64(2) when it enacted S.64-A. It reasoned that if Parliament intended to replace S.64(2), it could have done so by express repeal or by clear wording indicating exclusivity; the absence of such steps suggests Parliament intended the two provisions to exist side by side.
The court rejected the submission that possible administrative or practical difficulties arising from concurrent revisional powers constitute repugnancy. It held that administrative difficulties are not a constitutional ground to find repugnancy and that resolution of such difficulties is for the legislator.
Having rejected the principal contention that S.64(2) had ceased to exist, the court addressed the petitioner's other objections. First, it rejected the argument based on the notification (S.R.O. No. 5 dated 7-1-1957) and the definition rule R.3(kk) since the moment the Authority is appointed the power of revision vests automatically by virtue of sub-section (2) and it is not within the State Government's competence to withhold that power by notification language.
On the merits of the grant of the temporary permit, the court agreed with the Tribunal that the first proviso to Section 62 forbids granting a temporary permit in respect of any route or area specified in an application for a new permit under Sections 46 or 54 during the pendency of that application. The court found that applications by the second respondent and others for a new permit under Section 46 were still pending before the Regional Transport Authority; the temporary permit to the petitioner was granted on 2-3-1957 (after the proviso came into force on 16-2-1957), and thus the grant was prohibited.
The court rejected the petitioner's contention that the proviso must be read to mean the pending application must be by the very person to whom the temporary permit is granted, or that the pending application must have been made after the proviso's commencement. The court found no support for those narrowed constructions in the wording.
Finally, the court dealt with the submission that the second respondent had a right of appeal under sub-section (1) of S.64, which would exclude revision under sub-section (2). The court agreed with the Tribunal that no appeal lay against the grant of a temporary permit. The revision petition challenged the grant of the temporary permit and not the refusal of a permit to the second respondent, and the temporary permit is granted without notice and without hearing objections; therefore the appeal provisions (including the potential clause (f)) did not apply and revision was competent.

Holding and Implications

Holding: The petition is dismissed.

The court awarded costs against the petitioner (Advocate's fee Rs. 100).

Implications:

The court held that sub-section (2) of Section 64, as introduced by Madras Act XXXIX of 1954, is not void or repugnant by reason of the enactment of Section 64-A of Central Act 100 of 1956; both provisions can operate concurrently and the Union enactment was not intended to be an exhaustive code displacing the State provision.
Because the court found that the temporary permit granted to the petitioner contravened the first proviso to Section 62 (given pending applications by other claimants under Section 46), the Tribunal's order setting aside the permit was upheld in substance and the petition to quash that order failed.
The decision directly affects the parties by dismissing the petition and leaving the Tribunal's order in place; the court imposed costs on the petitioner. The opinion does not purport to lay down any new broad precedent beyond applying established principles on repugnancy and concurrent jurisdiction as drawn from the cited authorities.

Disposition recorded in the opinion: "Petition dismissed." (Advocate's fee Rs. 100.)

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Calicut Wynad Motor Service (Private) Ltd. v. State Transport Appellate Tribunal, Trichur And Another

1. This petition under Article 226 of the Constitution for the issue of a writ of certiorari raises the question whether sub-s. (2) of Section 64 of the Motor Vehicles Act, 1939, as in force in the area formerly known as the District of Malabar, namely, as amended by Madras Act XXXIX of 1954, has become void by reason of the enactment of the new Section 64-A of the Central Act 100 of 1956. The petitioner is a bus operator, and in August 1955 he obtained a permit from the Regional Transport Authority, Kozhikode, for running a bus from Kozhikode to Sultan's Battery. The second respondent herein was a rival applicant, and he and the other unsuccessful applicants took the matter in appeal and eventually the State Transport Tribunal, Madras, (the appellate authority constituted under Section 64 of the Act), after declaring the petitioner ineligible, remanded the matter to the Regional Transport Authority for fresh disposal after considering the claims of the remaining applicants. The matter is still pending with the Regional Transport Authority, and pending its disposal the Authority, after granting two successive temporary permits to the second respondent under Section 62 of the Act, granted the third temporary permit to the petitioner on 2-3-1957 ‘for a period of four months from 4-3-1957 or till a pucca permit is issued for the route whichever is earlier.’

2. Meanwhile after the formation of the Kerala State, the Government of Kerala had, by its order S.R.O No. 5 dated 7-1-1957, appointed the District Judge, Trichur, as the State Transport Appellate Tribunal to hear and dispose of appeals under Section 64 of the Act. Against the order of the Regional Transport Authority granting a temporary permit to the petitioner the second respondent filed a revision petition under Section 64(2) of the Act before this Tribunal, and the Tribunal after hearing the parties passed an order setting aside the grant of the permit to the petitioner on the ground that the grant was prohibited by the first proviso to Section 62 of the Act as amended by Central Act 100 of 1956.

3. It is to quash this order that the present petition has been brought, and the main objection taken is that after the enactment of the new S. 64-A providing for revision of the orders of a Regional Transport Authority, Section 64(2) of the introduced by Madras Act XXXIX of 1954 has become void under Article 254 of the Constitution at least in so far as revision of the orders of Regional Transport Authorities is concerned.

4. Section 64 of the principal Act provided for an appeal to the prescribed authority from certain orders of the State or Regional Authorities. There was no provision in the principal Act for revision, and, by Madras Act XXXIX of 1954, Section 64 of the principal Act was renumbered as sub-s. (1) thereof and the following introduced as sub-s. (2):

“The authority prescribed under sub-s. (1) for the purpose of hearing appeals may, either of its own motion or on application made to it, call for the records of any Regional Transport Authority or the State Transport Authority, as the case may be, for the purpose of, satisfying itself as to the legality, regularity or propriety of any order made by such Transport Authority against which no appeal is provided for under sub-s. (1) and after examining such records pass such orders in reference thereto as it thinks fit.”

5. The new Section 64-A of the introduced by the Central Act 100 of 1956 reads thus (omitting the two provisos which are not relevant for the present purpose):

“The State Transport Authority may either on its own motion or on application made to it call for the record of any case in which an order has been made by a Regional Transport Authority and in which no appeal lies, and if it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or illegal, the State Transport Authority may pass such order in relation to the case as it deems fit.”

6. The argument is that sub-s. (2) of Section 64 of the introduced by Madras Act XXXIX of 1954 is repugnant to this provision and is therefore void under Article 254(1) of the Constitution. It is conceded that there has been no express repeal of S. 64(2).

7. It will be noticed that there is no inconsistency, express or implicit, between the two provisions. There is nothing impossible or even difficult or unusual in there being two authorities exercising concurrent powers of revision — the concurrent power of revision conferred on the High Court, the Sessions Judge and the District Magistrate by the Code of Criminal Procedure is an instance in point. It is quite possible for the Tribunal appointed under S. 64 and the State Transport Authority to function concurrently as revisional authorities under Ss. 64(2) and 64-A respectively, the former over both the Regional and the State Transport Authorities and the latter over the Regional Transport Authorities, and hence the test of harmonious co-existence and simultaneous obedience is satisfied.

8. But this is not an exhaustive test of repugnancy. There remains the question whether the Union law, namely the new S. 64-A, is intended to be complete and exhaustive so far as revision from the orders of Regional Transport Authorities is concerned. The exact connotation of the term ‘repugnancy’ in Article 254 is explained in paras. 26 to 33 of the Supreme Court judgment in Tika Ramji v. State of U.P, (S) AIR 1956 SC 676 (A), where the following observation of Isaacs, J., in Clyde Engineering Co. Ltd. v. Cowburn, (1926) 37 CLR 466 at p. 489 (B), is cited with approval:

“If, however, a competent Legislature expressly or implicitly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another Legislature assumes to enter to any extent upon the same field.”

9. Another quotation is from the judgment of B.N Rau, J., in G.P Stewart v. Brojendra Kishore Roy, AIR 1939 Cal 628 (C) :

“The principle deducible from the English cases, as from the Canadian cases seems therefore to be the same as that enunciated by Isaacs, J., in the Australian 44 hour case, 37 CLR 466 (B), if the dominant law has expressly or impliedly evinced its intention to cover the whole field, then a subordinate law in the same field is repugnant and therefore inoperative. Whether and to what extent in a given case, the dominant law evinces such an intention must necessarily depend on the language of the particular law.”

10. And in para. 33 it is said that the questions that arise are:

“Whether Parliament and the State Legislature sought to exercise their powers over the same subject-matter or whether the laws enacted by Parliament were intended to be a complete exhaustive code or, in other words, expressly or impliedly evinced an intention to Cover the whole field.”

11. Turning now to the language of the new S. 64-A, it seems clear that, as pointed out by the Tribunal, there is nothing in it that either expressly or impliedly discloses an intention to be a complete, exhaustive or exclusive provision for revision against the orders of a Regional Transport Authority. The Act does not say that the revisional jurisdiction is to be exercised only by the State Transport Authority or give any indication that no other remedy than an appeal under S. 64 or a revision under S. 64-A is open to an aggrieved party.

12. When Parliament enacted S. 64-A it is to be presumed that it must have been aware of the existence of sub-section (2) of Section 64 of the introduced by Madras Act XXXIX of 1954, and if the new section was designed to replace that provision nothing would have been simpler than to say so either by an express repeal, or by some indication that the new section was an exhaustive provision for revision of the orders of a Regional Transport Authority. It would appear that Parliament was content that the two provisions should exist side by side.

13. It is argued that the existence of concurrent powers of revision in two different authorities might lead to conflicts and difficulties. I see no reason why it should, for it is quite apparent that the Tribunal constituted under S. 64 which has powers of revision over both the State and the Regional Transport Authorities is the superior authority. That apart, administrative difficulties in the actual working of the two provisions is no ground for holding that they are mutually repugnant and if such difficulties do actually exist it is for the appropriate Legislature to resolve them by repealing one or the other of the provisions.

14. The main ground urged in support of the position, namely, that S. 64(2) has ceased to exist, and that therefore the Tribunal exercised a jurisdiction which it did not possess, fails. I shall now proceed to deal briefly with, the remaining objections taken on behalf of the petitioner. The first is also one of jurisdiction, and it is founded on the terms of the notification, S.R.O 5 dated 7-1-1957, appointing the District Judge, Trichur, as the State Transport Appellate Tribunal to hear and dispose of appeals under Section 64 of the Motor Vehicles Act.

15. It is said that neither this notification nor the rule (R. 3(kk)) defining ‘State Transport Appellate Tribunal’ refers to any revisional power and that therefore the intention must have been that the Tribunal should only hear appeals, leaving revisions to be disposed of by the State Transport Authority (constituted for this State by the notification No. T4-9371/56 ??? dated 1-11-1956) under the new S. 64-A. There is no substance whatsoever in this argument. In the first place, the appointment of the Tribunal, the framing of the rule, and the constitution of the State Transport Authority, were before S. 64-A came into force on 16-2-1957.

16. More than that, it is only necessary to read S. 64(2) to see that it is not for the State Government to confer the power of revision on the Authority appointed to hear appeals under sub-s. (1), or to withhold it. The moment the Authority is appointed the power of revision automatically vests in it by reason of sub-s. (2).

17. The next argument is that grant of temporary permit to the petitioner is not prohibited by the first proviso to Section 62 of the Act and that the Tribunal committed an error apparent on the face of the record in thinking that it was. This argument also is equally without substance. From the facts that have already been stated it is quite clear that although the application by the present petitioner may be considered to have been finally disposed of by the order of the Appellate Tribunal of Madras, the applications of the second respondent and the other claimants are still pending before the Regional Transport Authority. Therefore the grant of a temporary permit for the same route is prohibited by the proviso which runs as follows:

“Provided that a temporary permit under this section shall in no case be granted in respect of any route of area specified in an application for the grant of a new permit under S. 46 or S. 54 during the pendency of the application.”

18. The applications by the second respondent and the others are for a new permit under S. 46, and they are still pending. It is true that the proviso has no retrospective effect. But the grant of the temporary permit in this case was on 2-3-1957 after the proviso came into force on 16-2-1957. And there is nothing in the wording of the proviso to warrant the construction sought to be placed upon it, namely that the pending application must be by the very person to whom the grant is made before the prohibition is attracted, or the construction that the pending application must be one made after the proviso came into force.

19. It is next said that the second respondent has a right of appeal under sub-s. (1) of S. 64 and that therefore no revision would lie under sub-s. (2). Here again, I think that the Tribunal was right in holding that no appeal could lie against the grant of temporary permit. It is to be noted that the revision petition before the Tribunal was against the grant of the temporary permit to the petitioner and not against the refusal of a permit to the second respondent who was also an applicant, and, therefore it does not come within cl. (a) of S. 64(1). A temporary permit is granted without notice and without hearing objections, and hence no appeal would lie under cl. (f) the only other possible clause, since the second respondent is not a person who opposed, or could have opposed, the grant of the permit. I dismiss the petition with costs. Advocate's fee Rs. 100.

V.S.B

20. Petition dismissed.

Calicut Wynad Motor ... v. State Transport Appe...