K. M. Shanmugam vs The S. R. V. S. (P) Ltd. and Ors

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 697 of 1962

Decision Date: 06 February 1963

Coram: Syed Jaffer Imam, Raghubar Dayal, J.R. Mudholkar, Subba Rao J.

In this matter the petitioner, K. M. Shanmugam, challenged a decision rendered on 6 February 1963 by the Supreme Court of India. The bench that heard the appeal consisted of Justices Syed Jaffer Imam, Raghubar Dayal and J. R. Mudholkar. The case is reported as K. M. Shanmugam versus The S. R. V. S. (P) Ltd. and Others, with the judgment dated 06 February 1963. The citation references include 1963 AIR 1626 and 1964 SCR (1) 809, and the decision is also noted in subsequent citators as D 1964 SC 477, R 1989 SC2138. The issues involved concern the stage‑carriage permit marking system and the question of an error apparent on the face of the record under the Motor Vehicles Act, 1939 (4 of 1939), sections 43A and 47, and the relevant constitutional provision, Article 226.

The Regional Transport Authority, applying the marking system prescribed by a Government order made under section 43A of the Motor Vehicles Act, granted a permit to the appellant. The first respondent appealed to the State Transport Appellate Tribunal, which re‑evaluated the marks. In doing so the Tribunal did not allocate any mark to the first respondent under the heading “residence or place of business,” thereby treating the appellant and the first respondent as equal, and additionally granted the appellant four extra marks under the heading “viable unit.” The first respondent instituted proceedings before the High Court under Article 226, contending that the Tribunal’s failure to award a mark for his residential qualification breached sections 47(1)(a) and ( c) of the Motor Vehicles Act. The learned single judge of the High Court accepted this argument, set aside the Tribunal’s order, and directed the Tribunal to proceed in accordance with law. The Division Bench of the High Court affirmed the writ. On further appeal by special leave, the appellant argued before this Court that the High Court lacked jurisdiction to issue a writ of certiorari because any alleged error was factual, and that the directions issued under section 43A were merely administrative and, even if breached, did not constitute an error of law capable of supporting a writ. The Court held that the existence of an error apparent on the face of the record, sufficient to justify interference under Article 226, must be decided on the facts of each case and no rigid test can be imposed as a general rule. The Court further observed that, although the directions under section 43A are administrative, they are intended to facilitate an objective assessment of the considerations set out in section 47; consequently, if applying those directions results in a breach of section 47 by ignoring a relevant consideration, such a breach constitutes a manifest error of law and therefore provides ground for judicial interference under Article 226. The judgment cited authorities including Hari Vishnu Kamath v. Syed Ahmad Ishaque, [1955] 1 S.C.R. 1104, Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam [1958] S.C.R. 1240, Satyanarayan v. Mallikarjun, [1960] 1 S.C.R. 890, and Shri Ambica Mills Co. v. S. B. Bhatt, [1961] 3 S.C.R. 220, among others.

The Court referred to several authorities, namely v. S. B. Bhatt, [1961] 3 S.C.R. 220; Provincial Transport Service v. State Industrial Court, [1963] 3 S.C.R. 650; Batuk Vyas v. Surat Municipality, A.I.R. 1953 Bom. 133; and M/s. Raman & Raman Ltd. v. The State of Madras, [1959] Supp. 2 S.C.R. 227. The Court held that, although the directions issued under section 43A of the Motor Vehicles Act were of an administrative nature, they were intended to facilitate an objective assessment of the considerations enumerated in section 47 of the same Act. Accordingly, where the application of those directions to a particular case results in a breach of section 47 – specifically by disregarding a consideration that the statute requires to be taken into account – such a breach constitutes a manifest error of law. The Court explained that a manifest error of law furnishes a sufficient ground for the High Court to intervene under article 226 of the Constitution. The Court also cited, for comparison, M/s. Raman & Baman Ltd. v. State of Madras, [1959] Supp. 2 S.C.R. 227; Abdulla Rowther v. State Transport Appellate Tribunal, Madras, A.I.R. 1959 S.C.R. 896; Ayyasswani Gounder v. M/s. Soudambigai Motor Service, C.A. No. 198 of 1962 decided on 17‑9‑62; and Sankara Ayyar v. Marayanaswami Naidu, C.A. No. 213 of 1960 decided on 10‑10‑60, which were distinguished on the facts.

The present appeal, numbered Civil Appeal No. 697 of 1962, was filed by special leave against the judgment and order dated 21 March 1962 passed by the Madras High Court in Writ Appeal No. 154 of 1960. The appellant was represented by counsel comprising B. Sen, Ravinder Narain, O. C. Mathur and J. B. Dadachanji, while respondent 1 was represented by counsel A. V. Visvanatha Sastri and R. Gopalakrishnan. Respondents 2 and 3 were represented by counsel A. Ranganadham Chetty and A. V. Rangam. The judgment was delivered on 6 February 1963 by Justice Subba Rao. The appeal challenged a decision of a division bench of the Madras High Court that had affirmed an order of a single High Court judge who, on a petition filed by the respondent under article 226 of the Constitution, had set aside the order of the State Transport Appellate Tribunal. The tribunal’s order had granted a stage‑carriage permit to the appellant for the route from Tanjore to Mannargudi via Vaduvoor. The Court briefly restated the factual background: the Regional Transport Authority of Tanjore issued a public call for applications for a stage‑carriage permit on the said route, and eleven persons submitted applications. The Authority used the marking system prescribed in Government Order No. 1298 (Home) dated 28 April 1956 to evaluate the applications. Under this system the appellant obtained the highest aggregate of seven marks, whereas the first respondent received only four and one‑quarter marks, leading the Authority to prefer the appellant and issue the permit to him. The Court noted that the marks obtained by the other nine applicants were not before it and therefore were not considered. The total marks for each of the two parties were computed by adding the scores awarded under several criteria, the first of which was labelled “Viable”.

In the original assessment the Regional Transport Authority evaluated the applicants on five criteria that were labelled Work, Residence, Experience, Special and Unit, and recorded the marks for each applicant in a tabular form. The appellant, identified as K M S, received four marks for the first criterion, one mark for the second, one mark for the third, one‑half mark for the fourth and one‑quarter mark for the fifth, giving a total of seven marks. The first respondent, identified as S R V S, obtained one mark for each of the first four criteria and one‑quarter mark for the fifth, resulting in a total of four marks. The court observed that if the four marks awarded to the appellant under the first column, which was described as “Viable Unit”, were excluded, the appellant’s remaining tally from the other four columns would be only three marks, whereas the respondent would have four marks from those same columns.

According to the Government Order that governed the marking system, the marks in the first column were to be taken into account only when the totals obtained by the two applicants in columns two through five were identical. Consequently, the court concluded that the authority had erred in granting the stage‑carriage permit to the appellant, because the appellant’s score in columns two to five was lower than the respondent’s and therefore the four marks in the first column should not have been considered in his favour. Dissatisfied with this decision, the first respondent filed an appeal before the State Transport Appellate Tribunal, which is hereafter referred to as the Appellate Tribunal.

The Appellate Tribunal recalculated the marks for both parties and presented a new table. Under the revised assessment the appellant received four marks for the first criterion, two marks for the second, one mark for the third, three‑quarters mark for the fourth and one‑quarter mark for the fifth, amounting to a total of eight marks. The respondent obtained two marks for the first criterion, no mark for the second, one mark for the third, one mark for the fourth and four marks for the fifth, also totalling eight marks. The tribunal therefore found that the totals in columns two through five were equal, each party having four marks, and consequently treated the first column marks as applicable.

The respondent argued before the Appellate Tribunal that it deserved a mark in the column labelled “Residence or place of business” because it maintained places of business at Tanjore and Mannargudi, and the authority had originally allotted one mark for that column. The tribunal rejected this claim on the basis that the respondent also operated a branch office at Kumbakonam, and therefore the establishments at Tanjore and Mannargudi could not be treated as separate branch offices for the purpose of earning the mark. Aggrieved by the tribunal’s order, the respondent instituted a petition before the High Court under Article 226 of the Constitution, seeking its set‑aside.

The High Court, presided over by Justice Ramachandra Iyer, allowed the petition. The principal ground for this relief was that the Appellate Tribunal had failed to award any mark for the residential qualification, thereby refusing to consider the admitted existence of a workshop at Mannargudi. The court held that this omission amounted to a refusal to take into account a material fact, violated the relevant provisions of the Motor Vehicles Act, and constituted an error apparent on the face of the record. Accordingly, the High Court quashed the Tribunal’s order and directed that the appeal be re‑examined afresh by the State Transport Appellate Tribunal.

In this case, the Court observed that the existence of a workshop at Mannargudi meant that the Appellate Tribunal had breached sections 47(1)(a) and 47(1)(c) of the Motor Vehicles Act. The learned judge expressed the same view in other words, stating that with respect to the residential qualification the Tribunal had refused to consider whether the workshop at Mannargudi was sufficient to entitle the petitioner to any marks under the relevant head, solely because the workshop was described as a branch of a branch office. The judge held that this refusal constituted an error apparent on the face of the record, and consequently he set aside the Tribunal’s order and indicated that the State Transport Appellate Tribunal would have to rehear the appeal anew.

The Letters Patent appeal filed by the appellant was heard by a division bench comprising Justices Anantanarayanan and Venkatadri. Those judges dismissed the appeal, explaining that the judgment essentially proceeded on the premise that, regarding the respondent’s claim to a valuation under column three arising from the alleged branch office at Mannargudi, there had been no judicial determination of that claim. They further observed that the Tribunal was free to adopt its own criteria for valuation under column two, provided those criteria were applied consistently and were based on some principle. While dismissing the appeal, the judges expressly stated that they were not in any way restricting the Tribunal’s discretion to reach its own conclusions on the claims of the parties, irrespective of any incidental observations made by the Court.

The appellant subsequently filed the present appeal by special leave against the order of the division bench. The factual narrative shows that the High Court had issued the writ because it was satisfied that a clear error apparent on the face of the record existed. Specifically, the Tribunal had refused to consider the existence of the branch office at Mannargudi when awarding marks under the “residence” head, on the ground that another office of the first respondent was located at Kumbakonam. The High Court noted that while it had accorded marks to the appellant for his residence, it had denied marks to the first respondent for its office on the same basis. Counsel for the appellant, Mr Sen, raised two points before the Court: first, that the Court lacks jurisdiction to issue a writ of certiorari under Article 226 of the Constitution to set aside a Tribunal order on the basis of an apparent factual error, however substantial, and that any error in this case was purely factual; and second, that this Court had previously held that …

The Court observed that the directions issued under section 43 of the Motor Vehicles Act were purely administrative in nature. Accordingly, an order issued by a Tribunal that violated those directions did not create any enforceable right in favour of the party affected. Therefore, the Court held that the order of the Appellate Tribunal, which was made in contravention of the section 43 directions, could not be the subject of a writ of certiorari.

Mr Viswanatha Sastri, counsel for the first respondent, presented his argument as follows. He stated that the petitioner, who was also the appellant, possessed a fundamental right to engage in the transport business. The Motor Vehicles Act, he explained, imposed reasonable restrictions on that right in the public interest. Under section 47 of the Act, the Appellate Tribunal was authorized to examine the material before it and to determine whether the public interest would be better served by granting the transport permit to the appellant or to the first respondent. The Government, exercising its powers under section 43, had issued administrative directions that set out certain principles to guide the Tribunal in reaching its decision. The Tribunal retained jurisdiction to decide the issue either by applying those principles or by deciding without them, but in either case its function was limited to resolving the question of the appropriate permit holder.

The first respondent had argued before the Tribunal that public interest would be best served if the permit were issued to it because it maintained a well‑equipped branch office at Mannargudi. This matter was relevant to the inquiry under section 47, which required the Tribunal to consider whether it had followed or ignored the Government’s instructions. Counsel contended that the Tribunal committed a clear error of law by holding that, because the first respondent also had a branch at Kumbakonam, its Mannargudi branch should be disregarded. He described this as an error apparent on the face of the record. Furthermore, he argued that the scope of an inquiry under article 226 of the Constitution was wide enough to permit the Court to issue appropriate directions even when a factual error was evident on the record.

The Court noted that it was not necessary to answer the broader question concerning the full amplitude of article 226, specifically whether the High Court’s power to quash orders of administrative tribunals was limited to the same circumstances that allow the English Court to issue a writ of certiorari or whether it extended beyond that. The appeal could be disposed of within the narrow limits of the English Court’s jurisdiction as understood by this Court. The Court added that, had it been required to decide the larger constitutional issue, the matter would have been referred to a bench of five judges because it involved a substantial question of law regarding constitutional interpretation.

The Court observed that questions concerning the Constitution, including those that fall under article 145, may be heard only by a bench consisting of at least five judges. Consequently, the Court decided that it was unnecessary to refer to the decisions cited by counsel, which were alleged to contain divergent opinions, because the matter could be resolved within the narrow issue that was before it. Turning to the scope of a writ of certiorari under common law, the Court recalled the propositions laid down in Hari Vishnu Kamath v. Syed Ahmed Ishaque (1). First, a certiorari may be issued to correct errors of jurisdiction, such as when an inferior court or tribunal acts without authority, exceeds its authority, or fails to exercise the authority it possesses. Second, a certiorari may also be issued when the lower body acts illegally while exercising a clear jurisdiction, for example, by deciding a matter without giving the parties a chance to be heard or by violating the principles of natural justice. Third, the Court emphasized that the issuance of a writ of certiorari is an exercise of supervisory jurisdiction rather than appellate jurisdiction, and therefore the higher court will not reassess factual findings of the inferior court or tribunal even if those findings are erroneous. Fourth, the Court explained that a manifest error apparent on the face of the proceedings may also justify a certiorari; such an error must be obvious, for instance when the decision is based on a clear misunderstanding or disregard of legal provisions. This approach was subsequently followed in Nagendra Nath Bora v. The Commissioner Hills Division and Appeals, Assam (1), Satyanarayan v. Mallikarjun (2), Shri Ambica Mills Co. v. S. B. Bhutt (3) and Provincial Transport Services v. State Industrial Court, Nagpur (4). The Court then turned to the more difficult issue of defining the phrase “manifest error apparent on the face of the proceedings.” In the earlier case, Justice Venkatarama Ayyar attempted to define the expression, noting that it does not apply when the error is not self‑evident and requires examination or argument to be established. He cautioned that while this test may work in most cases, it can fail because judicial opinions differ; an error that one judge sees as self‑evident may not appear so to another. Accordingly, the Court concluded that the concept of an error apparent on the face of the record cannot be precisely or exhaustively defined, as it inherently contains an element of indefiniteness that must be resolved by the judiciary on the facts of each individual case.

The Court explained that the expression necessarily includes a degree of indefiniteness that is built into its very nature, and consequently the determination of its exact meaning must be left to the judicial assessment of the particular facts of each case. From these observations it was clear that the learned judge could not prescribe an objective test, because the concept inevitably involves a subjective element. Justice Sinha, while speaking for the Court in the case of Nagendra Nath Bora, attempted to clarify the point further and observed at pages one thousand two hundred sixty‑nine to one thousand two hundred seventy that an examination of the authorities of this Court as well as of English courts shows that one of the grounds on which the High Court’s jurisdiction of certiorari may be invoked is an error of law apparent on the face of the record, and that every error, whether of law or of fact, which can be corrected by a superior court exercising its statutory powers as a court of appeal or revision, falls within that category. The decision appears to assume that the scope of a writ in the nature of certiorari, or an order or direction under Article 226 of the Constitution to set aside the decision of an inferior tribunal, is the same as the scope of the common‑law writ of certiorari in England; the Court expressly refrained from expressing any opinion on that assumption in the present case. Effectively, the decision accepts the opinion expressed in the earlier Hari Vishnu Kamath case, adding only the antithesis between “error of law and error of fact” and “error of law apparent on the face of the record.” Nevertheless, the question in each case remains whether an error is one of law or one of fact, and that determination must be made based on the factual matrix of the individual case. Justice Das Gupta made another attempt to define the expression when he said in Satyanarayan v. Mallikarjun, at page one hundred forty‑one, that an error which requires a lengthy process of reasoning on points where two differing opinions might conceivably exist can hardly be described as an error apparent on the face of the record. He further noted that, as the discussion of the rival contentions shows, the alleged error in the present matter is far from self‑evident and, if it can be established, must be established through lengthy and complicated arguments. The learned judge thereby laid down that the complexity of the arguments serves as a test for an apparent error of law. This test may also fail, because what is complex to one judicial mind may be clear and obvious to another, depending upon the particular judge’s intellectual equipment. Ultimately, the concept comprises many imponderables and cannot be precisely defined, since no objective criterion can be laid down; the apparent nature of the error largely depends on a subjective element. Moreover, in certain cases the distinction between an error of law and an error of fact is very thin, underscoring the necessity of examining each situation individually rather than applying a rigid formula.

The Court observed that the distinction between an error of law and an error of fact can be extremely narrow. It noted that one tribunal might mistakenly calculate that five hundred multiplied by ten thousand equals five lakh instead of fifty lakh; another tribunal could incorrectly deem a claim time‑barred by measuring the limitation period from 1956 rather than from 1961; and a third tribunal might commit a clear mistake when deciding a question that involves both fact and law. The Court explained that whether such mistakes constitute errors of law or errors of fact cannot be determined by any theoretical or a priori reasoning, as reflected in the authorities cited at (1) [1955] 1 S.C.R. 1104, 1121, 1123 and (2) [1960] 1 S.C.R. 890. Consequently, the Court declined to attempt a precise definition of the expression “error of law apparent on the face of the record,” emphasizing that the determination of that concept must continue to be made on a case‑by‑case basis, as has always been the practice. The only issue for consideration, therefore, was whether the State Transport Appellate Tribunal had committed an error of law apparent on the face of the record. To appreciate the problem, the Court examined the relevant provisions of the Motor Vehicles Act, 1939, as amended by the Madras Legislature, namely sections 47 and 43‑A. Section 47 mandates that a Regional Transport Authority, when evaluating an application for a stage‑carriage permit, must, among other things, take into account the general interests of the public. Section 43‑A, introduced by the Motor Vehicles (Madras Amendment) Act, 1948, empowers the State Government to issue orders and directions of a general character that it deems necessary concerning any matter connected with road transport, and directs that the State Transport Authority or any Regional Transport Authority must give effect to all such orders and directions. The Court referred to its earlier decision in M/s. Raman & Raman Ltd. v. The State of Madras, where it held that section 43‑A confers on the State Government the power to issue administrative directions and that such directions are not legislative enactments that regulate the rights of parties. The Court further observed that the orders and directions issued under section 43‑A cannot logically augment or diminish the considerations prescribed by section 47, which form the basis on which a tribunal is authorized to grant or refuse a permit. Accordingly, any direction issued under section 43‑A for the purpose of resolving conflicting permit applications can only serve to enable the Regional Transport Authority, as clarified in the authority cited at (1) [1959] Supp. 2 S.C.R. 227, to perform its duties under section 47 more satisfactorily, efficiently and impartially. Put differently, such directions do not expand or restrict the jurisdiction of the tribunal or the authority; they merely provide a reasonable guide for the exercise of that jurisdiction. In concrete terms, an applicant seeking a permit may, therefore, present to the Authority an important circumstance that supports his claim, without the direction under section 43‑A altering the legal framework within which the Authority decides the application.

The Court observed that an applicant may seek to place his case in a favorable light by showing that he maintains a branch office on the route for which a permit is being applied. He may argue that the presence of such an office on the route would serve the public interest because the necessary amenities or assistance required during any eventuality on the journey would be readily available. The Government, by virtue of section 43A, is also empowered to give instructions to the Regional Transport Authority indicating that the existence of an applicant’s office on the route is a matter of public interest and that, consequently, the applicant ought to receive preferential treatment where all other factors are equal. The purpose of such an instruction is merely to highlight a relevant fact that the authority must consider, even if the authority were not expressly instructed to do so. However, the Court warned that if the Authority, acting on a clear error of law, disregards this relevant consideration, it not only disobeys the administrative directions issued by the Government but also violates the provisions of section 47 of the Act. While failure to follow an administrative instruction may not by itself create a cause of action for an aggrieved party, a breach of statutory law does give rise to such a cause. The Court then examined the specific circumstances of the present case. The Government had issued Government Order No. 1298 (Home) on 28 April 1956, which introduced a marking system for evaluating the merits of applicants seeking stage‑carriage permits. Column 3 of that system read: “Location of residence or place of business of the applicant on the route or at the terminal: This qualification not only favours local enterprise but also ensures that the owner will give prompt and frequent attention to the service entrusted to him. One mark may be assigned to this qualification.” Under this instruction, the location of the applicant’s residence or place of business was deemed to be in the public interest, because the public benefit derived from the service granted to the permit‑holder. The first respondent asserted before the Regional Transport Authority that he maintained branch offices at Tanjore and Mannargudi, and therefore that this fact should be taken into account and a mark awarded under column 3. The Regional Transport Authority consequently awarded one mark to the appellant and one mark to the first respondent in that column. Nevertheless, the Appellate Tribunal declined to award any mark to the first respondent under column 3, offering the following reasoning: “On behalf of the other appellants and the Respondent it is contended that appellant No 1 (the first respondent before the Supreme Court) is a Private Limited Company having its registered office at Madras, that their offices at Kumbakonam are only branch offices, that any offices at Tanjore or at Mannargudi cannot be treated as branch offices, and that, as such, they are not entitled to any mark in column 3 of the mark list. This contention is a valid one.” The Court noted that this finding formed the basis for the Tribunal’s refusal to assign the mark to the first respondent.

In regard to the office alleged to be located at Tanjore, the Appellate Tribunal added a further reason, holding on the evidence that no office existed at that place. Consequently, the Court elected to disregard the Tanjore location for the purposes of the present appeal. Concerning the office claimed to be at Mannargudi, the Tribunal’s decision was founded on a manifest mistake. The Tribunal had concluded that if a company possessed a branch office at one specific location, it could not, by law, maintain any other branch office, even though such an additional branch might actually exist. The Court observed that, irrespective of any unresolved conflict in tax law or company law, the principle that a well‑equipped office situated on a route for which a permit is sought should be ignored merely because the same company has another branch elsewhere is untenable. This erroneous view prevented the Tribunal from addressing the substantive issue, namely whether the respondent indeed maintained an office at Mannargudi. Both Justice Ramachandra Iyer at the first instance and Justices Anantanarayanan and Venkatadri on appeal correctly identified this error. Since the mistake was apparent on the face of the record, the higher courts set aside the Tribunal’s order and remanded the matter, leaving the question of the Mannargudi office open for determination. The Court affirmed that the conclusion reached by the High Court was proper and that the remaining task was to consider the authorities heavily relied upon by counsel for the appellant.

The Court then turned to the authorities cited by the appellant, beginning with the decision in M/s Raman and Raman Ltd. v. The State of Madras. In that case, the appellant and the fourth respondent, together with other parties, applied for a stage‑carriage permit. The Regional Transport Authority granted the permit based on instructions issued by the State Government under section 43A of the Motor Vehicles Act. On appeal, the Central Road Traffic Board set aside the order, relying on fresh instructions issued by the Government. Subsequently, a division Bench of the Madras High Court dismissed the writ petition filed by the appellant. It was contended before this Court that the instructions issued under section 43A constituted law regulating the parties’ rights, and therefore the appellate authority could not disregard them in setting aside the Regional Transport Authority’s decision. The Court rejected this contention, holding that the instructions under section 43A were merely administrative directions and that the Tribunal’s jurisdiction was not compromised by ignoring those directions, provided it decided the matter on the substantive considerations enumerated in section 47 of the Act.

The tribunal was required to reach its decision while giving regard to the considerations prescribed in section 47 of the Motor Vehicles Act. The specific question before the tribunal was whether a small transport unit or a large transport unit would be viable or would better serve the public interest. The statute allowed for differing opinions on that issue, and the appellate tribunal, diverging from the earlier governmental directions, concluded that smaller units would be more advantageous to the public than larger ones. Accordingly, this judgment serves solely as authority for the proposition that a tribunal, when granting or refusing a permit, remains within its jurisdiction even if it disregards the administrative directions issued by the Government under section 43A of the Act, provided that the tribunal’s decision is based on the relevant considerations enumerated in section 47 of the Act. In the case of Abdulla Rowther v. The State Transport Appellate Tribunal, Madras (1), the Regional Transport Authority initially issued one permit each to the appellant and to an applicant identified as Gopalan Nair. Upon appeal, the Appellate Tribunal set aside those permits and instead granted permits to respondents numbered three and four. Both the Regional Transport Authority and the Appellate Tribunal examined the applications according to Government Order No. 1298, issued by the Government of Madras on 28 April 1956. Under that order, the Regional Transport Authority awarded four marks each to the appellant and to Gopalan Nair in Column 1, which dealt with the building (1) A.I.R. 1959 S.C. 896 strength to viable units, and it withheld any marks in Column 1 from respondents three and four on the ground that the latter were fleet owners. Consequently, the appellant and Gopalan Nair obtained a higher total of marks and were issued the permits. The Appellate Tribunal, however, held that the appellant and Gopalan Nair could not claim the benefit of the marks in Column 1 because they had secured fewer marks than respondents three and four in Columns 3 to 5. The Tribunal interpreted the government order to mean that only when the marks obtained by applicants in Columns 2 to 5 were equal could reference be made to Column 1. On that basis, the Appellate Tribunal annulled the Regional Transport Authority’s order and awarded the permits to respondents three and four. The appellant then challenged that order by filing an application for a writ of certiorari under Article 226 of the Constitution in the High Court of Madras. The presiding judge dismissed the application on two grounds: first, that the construction of the government order had not been shown to be erroneous; and second, that even if the order had been misinterpreted, it would not warrant the issuance of a writ because the order comprised only administrative directions. The subsequent Letters Patent appeal against that dismissal was also rejected, and the appeal made to this Court was likewise dismissed. This Court followed

The Court referred to the decision in M/s. Raman and Raman Ltd. v. The State of Madras (1) and observed that the instructions issued under s. 43A of the Motor Vehicles Act were merely administrative directions; consequently, even if the rule governing the assignment of marks was breached, such a breach did not constitute an error of law. This judgment follows that earlier ruling and reiterates that instructions given under s. 43A of the Motor Vehicles Act are administrative directions and that a party cannot obtain a writ of certiorari merely because those instructions were wrongly construed. The instructions, as recorded in the report of 1959 Supp. 2 S.C.R. 227, set out a method for evaluating the respective claims in relation to the considerations laid down in s. 47 of the Act. Both the Regional Transport Authority and the Appellate Tribunal kept those considerations in mind while deciding the rival claims, although they may have misinterpreted one of the instructions. It may be pointed out that in the case under discussion the interpretation placed on the instructions was in fact correct, yet the Court proceeded on the assumption that they might have been misinterpreted. The Court stressed that the decision cannot be read as authorising a tribunal, on the basis of a mistaken construction of the administrative directions or beyond those directions, to ignore the relevant considerations contained in s. 47 of the Act, nor to refuse to apply any of those considerations because of an apparent error of law on the record. The Court cited the decision in Ayyaswami Gounder v. M/s. Soudambigai Motor Service (1) as supporting this principle. In that case the Regional Transport Authority applied the marking system prescribed by the Government of Madras, awarding five marks to the appellant and six marks to the respondent. Although the respondent obtained six marks, the Authority denied him a permit, finding him guilty of misconduct. The appellant, having secured the highest number of marks among the other applicants, was granted a permit. On appeal, the Appellate Tribunal re‑allocated the marks, again placing the appellant at the top of the list; considering that the appellant operated only two buses and should be given an opportunity to build a viable unit quickly, the Tribunal upheld the permit originally granted by the Regional Transport Authority. One issue raised in that proceeding was whether the appellant was entitled to marks under Column 2 for repair and maintenance facilities at Dharapuram. The Appellate Tribunal found that such facilities existed. The appellant then filed a writ petition in the High Court, and the learned single judge thought that some mistakes had been committed by the Appellate Tribunal in the allotment of marks and

The Court observed that the petition challenged the conduct of the Appellate Tribunal for having acted contrary to the directions issued by the Government in the relevant Government Order. However, the petition was dismissed because the Court held that those directions were merely executive instructions, and a breach of such instructions did not create any enforceable right for the parties before the tribunal. In the subsequent Letters Patent Appeal, a Division Bench of the High Court set aside the dismissal, finding that the Appellate Tribunal had relied upon two considerations that were deemed irrelevant: first, that the appellant’s claim should be diminished because of a penalty imposed for his earlier misconduct; and second, that the third respondent, being a small operator, ought to receive more favorable treatment than the appellant, who was characterized as a monopolist. On further appeal, this Court referred to the decisions in M/s. Raman and Raman Ltd. v. The State of Madras (1) and Abdullah Rowther v. The State Transport Appellate Tribunal (2). It reiterated that the Government Order contained only administrative directions and that the failure of the transport authorities to comply with those directions did not, by itself, give rise to the right to obtain a writ of mandamus. Concerning the two reasons advanced by the High Court, this Court concluded that they were not irrelevant at all; rather, they were material considerations germane to the question of whether a permit should be granted. Accordingly, the Court allowed the appeal. This judgment embraces two propositions: first, that a misinterpretation or outright disregard of the Government’s executive instructions does not confer a right on an aggrieved party to invoke the jurisdiction of the High Court for a writ, because such instructions are merely administrative in nature; second, that if a tribunal were to base its decision on considerations that are truly irrelevant, the Court retains the power to issue a writ. In the present case, however, the Court found that the tribunal had not entertained any irrelevant considerations. The authorities cited include (1) [1959] Supp. 2 S.C.R. 227 and (2) A.I.R. 1959 S.C. 896. The last precedent relied upon was Sankara Ayyer v. Narayanaswami Naidu (1). In that case, both the Regional Transport Authority and the State Transport Appellate Tribunal examined applications for a new route permit, applying the administrative directions issued by the State Government. The Regional Transport Authority awarded the appellant three marks on the ground that he was a small operator, whereas the Appellate Tribunal concluded that he was not entitled to any marks on that basis. A single judge of the High Court set aside the tribunal’s order, holding that it had misread the Government Order concerning small operators. Yet, a Division Bench of the same Court, hearing a Letters Patent appeal, relied on the earlier decision of this Court and held that the directions were purely administrative and did not generate any legal rights, consequently allowing the appeal. This Court, following those earlier decisions, dismissed the appeal, finding that the tribunal, in construing the administrative directions, had not taken irrelevant considerations nor refused to consider relevant ones.

In this case the Court observed that the question of whether a permit should be issued to a small operator or to a large operator is always a matter of public interest and that the Tribunal is free to adopt either view. The Court further noted that previous decisions had clarified that the directions issued under section 43A of the Motor Vehicles Act are merely administrative instructions and that any breach of those instructions by the Tribunal does not create a legal right for a party to approach the High Court for a writ under article 226 of the Constitution. In the earlier cases the Tribunal either ignored the administrative directions or misconstrued them, yet it proceeded to decide the issue of permits based on considerations that fell within the ambit of section 47 of the Act. Those earlier judgments, including Civil Appeal No 213 of 1960 decided on 10‑10‑1960, were not intended to serve as authority on the precise question of whether a writ of certiorari would lie when a Tribunal, having adopted an evidently erroneous view of law, either declined to decide a question or decided it incorrectly on a consideration that is relevant under section 47, irrespective of whether the consideration is covered by the directions under section 43A.

The Court explained that if, on account of such an error of law, the Tribunal refuses to address a question that is legally relevant, the fact that the Government has issued instructions requiring the Tribunal to apply certain objective standards does not transform that question into an irrelevant matter under section 47. That principle was applied to the present dispute. The Court found that the Tribunal had, on the record, made a manifest error by holding that a company could not maintain a branch office on the route in question if it already had a branch elsewhere. In doing so, the Tribunal failed to consider a material fact, namely whether the respondent actually possessed an office on the contested route.

Consequently, the Court held that the High Court was correct in setting aside the order of the Appellate Tribunal and in directing the Tribunal to reconsider the issue on its merits, taking the relevant fact into account. Accordingly, the appeal was dismissed, and the appellant was ordered to bear costs. The appeal therefore fails and is dismissed with costs.