Abdui, Gafoor vs State Of Mysore

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 109 of 1961

Decision Date: 12 April 1961

Coram: K.C. Das Gupta, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, N. Rajagopala Ayyangar

In this case the Court recorded that the matter involved a petition filed by Abdui Gafoor against the State of Mysore and that the judgment was delivered on 12 April 1961 by a bench consisting of K C Das Gupta, P B Gajendragadkar, A K Sarkar, K N Wanchoo and N Rajagopala Ayyangar. The petition was numbered 109 of 1961 and was brought under article 32 of the Constitution of India for the enforcement of fundamental rights. The citation of the decision appears as 1961 AIR 1556 and 1962 S.C.R. (1) 909, with several subsequent references in later reports. The dispute centred on the Motor Vehicles Act, 1939, specifically sections 68‑C and 68‑F(1) of chapter IV‑A, together with the procedural provisions of section 57(3) of chapter IV. According to the headnote, the Mysore Transport Undertaking had published a scheme under section 68‑C, which was subsequently approved by the State Government. The State Transport Undertaking then made applications for permits under section 68‑F(1) to the Regional Transport Authority. Before the permits could be granted, the second respondent sought a writ of certiorari to restrain the Regional Transport Authority from acting on the applications unless the applications were published and notice was given for representations, alleging that section 57(3) required such publication and that the Authority was exercising quasi‑judicial functions.

The Court held that once a scheme prepared and published under section 68‑C has been approved and an application is made in pursuance of that scheme in the manner prescribed in chapter IV, there remains nothing further for the Regional Transport Authority to decide, and the Authority has no power to refuse the grant of the permit. The Court explained that the matters dealt with under section 68‑F(1) do not attract the duties imposed by section 57(3), which are relevant only when the Authority is considering an application for a permit in a different context. Consequently, the provisions of section 57(3) have no application to the actions taken under section 68‑F(1). The Court referred to the earlier decision in Srinivasa Reddy v. State of Mysore [1960] 2 S.C.R. 130 to support the proposition that, in exercising powers under section 68‑F(1), the Regional Transport Authority acts merely in a ministerial capacity and does not perform any quasi‑judicial function. The judgment thus concluded that the writ of certiorari could not be sustained. The petition was presented by counsel including the Attorney‑General of India and other advocates representing the petitioner, while the respondents were represented by counsel for the State of Mysore.

The judgment was delivered by Justice Das Gupta. The petitioner, who owned Shaheen Motor Service, operated a motor bus for hire on the route from Archalli to Saravanabelgola in Hassan District of the State of Mysore. The Mysore Transport Undertaking had published a scheme under section 68‑C of the Motor Vehicles Act, 1939. As a person affected by that scheme, the petitioner filed objections before the State Government pursuant to section 68‑D(1) of the Act. After considering the objections and hearing the petitioner, the State Government approved the scheme on 22 December 1959, subject to a minor modification that is not material to the present case. In accordance with the approved scheme, the State Transport Undertaking, which is the second respondent, made applications for permits. Before the Regional Transport Authority could issue those permits, the petitioner filed the present writ petition. The petition sought, in the first place, a writ of certiorari to set aside the scheme and obtain consequential directions, and, in the second place, a writ of prohibition directing the Regional Transport Authority of Hassan District, the third respondent, to refrain from processing the permit applications submitted by the second respondent unless and until those applications were duly published, notice of the publication was given to the petitioner, and the petitioner was allowed to make representations concerning their compliance with the conditions of section 68‑F(1) of Chapter IV‑A. After the petitioner’s counsel was heard, the Court, by its order dated 21 March 1961, granted leave to amend the petition so that it would be confined to the second prayer only and directed that a rule be issued solely with respect to that prayer.

The question before the Court was whether a writ of prohibition should be issued to stop the Regional Transport Authority, Hassan District, from dealing with the permit applications of the State Transport Undertaking until the applications were properly published and notice was given to the petitioner, allowing him to make representations. The petitioner contended that, according to law, no permit could be granted to the State Transport Undertaking until the applications had been duly published and notice of those applications provided to him. Supporting this position, the petitioner’s counsel advanced two arguments. First, it argued that section 57(3) of Chapter IV of the Act required prior publication of the applications together with notice of the deadline for submitting representations, and that, by virtue of section 68‑B of Chapter IV‑A, the requirements of section 57(3) must be observed. Second, it maintained that the Regional Transport Authority performed a quasi‑judicial function when handling applications made under section 68‑F, and therefore the petitioner, who would be affected by the issuance of the permits, was entitled to receive notice.

The Court observed that whenever a permit is to be issued, the affected party must be given notice of the application. Section 68‑B, which was relied upon, states that the provisions of Chapter IV‑A shall have effect “notwithstanding anything inconsistent therewith contained in Chapter IV.” The provision does not affirmatively declare that any specific rule from Chapter IV applies to matters falling under Chapter IV‑A; instead it merely provides that in case of conflict, Chapter IV‑A prevails. Counsel for the petitioner, Mr Iyengar, contended that the clause implicitly means that when no conflict exists, all Chapter IV provisions should automatically apply to Chapter IV‑A matters. The Court rejected this submission, calling it fallacious because Section 68‑B merely assumes some Chapter IV rules may be relevant to Chapter IV‑A, and then directs that any inconsistent Chapter IV‑A rule will override the corresponding Chapter IV rule. Section 68‑B offers no guidance, either expressly or by implication, as to which specific Chapter IV provisions should apply, so each provision must be examined in the context of the particular matter. Accordingly, to determine whether a given Chapter IV provision, which does not conflict with any Chapter IV‑A provision, applies to a Chapter IV‑A case, the Court must assess the nature of the case and decide if that provision is attracted. The matter before the Court concerns the application of Section 68‑F(1), which becomes operative only after a transport scheme has been approved by the State Government under Section 68‑D(2). For the approved scheme to be implemented, the State Transport Undertaking that will operate the service must first obtain a permit from the Regional Transport Authority. Section 68‑F(1) mandates that the Undertaking apply for a permit (i) in pursuance of the approved scheme and (ii) in the manner prescribed by Chapter IV. Once the application is made, the subsection declares that the Regional Transport Authority shall issue the permit “notwithstanding anything to the contrary contained in Chapter IV.” The Court finds it clear that Section 57(3) does not relate to the issues addressed by Section 68‑F(1), because Section 57(3) imposes duties on the Authority when it considers a permit application, such as making the application available for inspection at its office and publishing…

Section 68‑F(1) provides that once a scheme has been approved by the State Government, the Regional Transport Authority must issue a permit to the State Transport Undertaking if the application is made in accordance with that approved scheme and follows the procedure prescribed in Chapter IV; the authority has no discretion to refuse such a permit. Under Section 57(3), the authority is required to make the application or its substance available for inspection in the prescribed manner, to publish the application together with a notice specifying the date by which any representations may be filed, and to announce the date, time and place at which the application and any received representations will be considered. The duty of the Regional Transport Authority, upon receiving the application from the State Transport Undertaking, is therefore to examine the application itself to determine whether it is made pursuant to an approved scheme and whether it complies with the procedure laid down in Chapter IV. This examination is a responsibility that the authority performs on its own; it does not involve seeking assistance from the public or from existing permit holders on the route, and neither the general public nor any existing permit holder has any role in this particular matter. The provisions of Section 57(3) concerning inspection, publication and notice are intended to help the authority reach a correct conclusion as to whether the permit should be granted. An application that does not follow the method required by Chapter IV will not be considered at all, but even an application that does follow the proper method does not automatically entitle the applicant to a permit. The authority must consider all relevant factors before deciding whether to allow the permit. Other operators and members of the public do have a legal right to submit representations in order to persuade the authority not to grant the permit on the merits of the case, and this is why sub‑section 3 of Section 57 was enacted to enable the authority to receive such assistance. However, when a scheme prepared and published under Section 68‑C has been approved and an application has been made in pursuance of that scheme and in the manner specified in Chapter IV, there remains nothing further for the authority to decide, and the matters dealt with under Section 68‑F(1) cannot and do not fall within the scope of Section 57(3). The Court also noted that in the case of Srinivasa Reddy & Ors. v. State of Mysore & Ors., a question was raised as to whether Section 57(3) applied to an application made under Section 68‑F(1).

In the matter concerning an application that had been filed under section 68‑F(1), the Court observed that a detailed examination of the substantive issues was unnecessary because, according to the facts, the application had not been submitted in the manner required by Chapter IV and therefore violated section 57(2) of the Act; as a result, the Court concluded that a permit could not be issued on the basis of such a defective application.

The Court explained that the provision contained in section 57(2), which is applicable to applications made under section 68‑F, mandates that an application for a permit must be made at least six weeks before the date on which the applicant desires the permit to take effect, or must be filed on dates that the Regional Transport Authority may prescribe for the receipt of such applications. The Court held that this requirement under section 57(2) is effectively a rule concerning the manner of making the application, and consequently it applies to applications filed under section 68‑F(1). The Court cited the earlier decision reported in [1960] 2 S.C.R. 130 to support this interpretation.

Conversely, the Court stated that the provisions of section 57(3) do not relate to the manner of making the application, and that the nature of the matter dealt with under section 68‑F(1) is such that the provisions of section 57(3) are not attracted.

The next argument presented before the Court was that the Regional Transport Authority functions as a quasi‑judicial body when it deals with an application made by the State Transport Undertaking under section 68‑F(1). It was argued that, pursuant to section 68‑F(2), the Authority may refuse to entertain an application for renewal of any other permit, may cancel an existing permit, or may modify certain terms of an existing permit, and that, for the purpose of giving effect to an approved scheme, a dispute (lis) would arise between the existing permit holders and the State Transport Undertaking whenever an application under section 68‑F(1) is considered.

The Court found that, when deciding what action to take under section 68‑F(2), the Authority is bound by the terms and conditions of the approved scheme, and its duty is merely to carry out what is necessary to give effect to those provisions. The refusal to entertain renewal applications, the cancellation of permits, or the modification of permit terms all flow directly from the scheme itself. Accordingly, the Authority’s duty in these matters is purely mechanical, and there is no genuine dispute between the existing operators and the State Transport Undertaking that the Authority must adjudicate.

Therefore, the Court concluded that there is no justification for characterising the Authority’s actions under section 68‑F(2) as the exercise of a quasi‑judicial function. Moreover, the Court emphasized that the action contemplated under section 68‑F(2) is independent of the issuance of permits under section 68‑F(1). Once the scheme has been approved, the actions required under section 68‑F(1) and those required under section 68‑F(2) both arise from the same scheme, but they operate separately and do not create a quasi‑judicial role for the Authority.

The argument that the Regional Transport Authority should be regarded as exercising a quasi‑judicial function when it deals with applications for permits under section 68‑F(1), merely because it may later act under section 68‑F(2), was rejected. The Court observed that the power to take action under section 68‑F(2) does not transform the authority’s role under section 68‑F(1) into a quasi‑judicial one.

The Court then examined the effect of section 48(3) of the Act, which permits the Regional Transport Authority, when it decides to grant a stage‑carriage permit, to attach to that permit any of the conditions specified in that subsection. It was noted that section 68‑F(1) uses the term “issue” rather than “grant”, and therefore the authority is simply issuing a permit. Even if the authority must decide which conditions to attach, this decision is guided by public interest considerations and does not create a dispute, or lis, between the State Transport Undertaking and the public. Consequently, the authority’s action remains ministerial rather than quasi‑judicial. The Court emphasized that the authority may perform quasi‑judicial functions in other contexts, but such functions do not convert its specific duty under section 68‑F(1) into a quasi‑judicial exercise.

In applying this reasoning, the Court concluded that the petitioner’s claim—that no permit could be issued to the State Transport Undertaking until the applications had been published and notices served to the petitioner—was without merit. Accordingly, the petitioner was not entitled to any relief. The petition was dismissed with costs, and the order was entered as a dismissal of the petition.