http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: ABDUI, GAFOOR

       Vs.

RESPONDENT: STATE OF MYSORE

DATE OF JUDGMENT: 12/04/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1556            1962 SCR  (1) 909  CITATOR INFO :  R          1962 SC1135  (6)  R          1962 SC1183  (16)  RF         1963 SC 640  (11)  RF         1971 SC1662  (11)  F          1971 SC1986  (10)  R          1972 SC1674  (8,9)  R          1974 SC1940  (6)

ACT: Motor  Transport--Scheme Published  and  approved--Permits-- Application for by State Transport  Undertaking--Publication of application and notice of date for making  representation by  other Transport Services, if  necessary--Motor  Vehicles Act, 1939 (IV of 1939), ss. 68-C, 68-F (1), Ch.  IV-A.

HEADNOTE: After  a  scheme  ’Was published  by  the  Mysore  Transport Undertaking  under s. 68-C of the Motor Vehicles Act,  1939, and  approved  by the State Government the  State  Transport Undertaking  made applications for permits under s.  68-F(1) of  the Act to the Regional Transport Authority  but  before the  permits  were  granted the second  respondent  made  an application  for  a  Writ  of  Certiorari  prohibiting   the Regional  Transport Authority from dealing with  the  second respondent’s  application for permit unless and  until  they were  duly published and notice was given to him for  making representations.  The contention on his behalf was that  the publication of the applications with notice of the (late for submitting the representations was necessary under s.  57(3) Ch.   IV of the Act and that lie was entitled to  notice  as the  Regional Transport Authority acted in  a  quasijudicial capacity while dealing with applications for permits. Held,  that when a scheme. prepared and published  under  s. 68-C  has been approved and in application has been made  in pursuance  of  the  scheme  and  in  the  proper  manner  as specified  in Ch.  IV nothing more remains to be decided  by the Regional 910 Transport Authority and it has no option to refuse the grant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

of the permit.  The nature of the matter dealt under.s.  68- F(1) is such as does not attract the provisions of S.  57(3) which  lays  down certain duties on the  Regional  Transport Authority  when  it considers an application for  a  permit. The  provisions  of  S. 57(3) have nothing to  do  with  the matters dealt with by s. 68-F(1). Srinivasa  Reddy  v. State of Mysore, [1960] 2  S.C.R.  130, referred to. When taking action under, s. 68-F(1) the Regional  Transport Authority does not exercise any quasi-judicial function  and acts wholly in a ministerial capacity.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 109 of 1961. Writ Petition under Art. 32 of the Constitution of India for enforcement of the Fundamental Rights. M. O. Setalvad, Attorney-General of India, B. R. L.  Iyengar and K. P. Bhat, for the petitioner. A. V. Viswanatha Sastri, R. Gopalakrishnan and T. M. Sen, for the respondents. 1961.  April 12.  The Judgment of the Court was delivered by DAS GUPTA, J.--The petitioner, who is the proprietor of  the Shaheen  Motor Service, used to ply a motor bus for hire  on the route Archalli to Saravanabelgola in Hassan District  in the  State of Mysore.  A scheme under s. 68-C of  the  Motor Vehicles  Act  of 1939 having been published by  the  Mysore Transport Undertaking, the petitioner as one of the  persons affected  thereby filed objections to the scheme before  the State  Government  under s. 68-D(1) of the Act.   The  State Government  however after considering the  objections  a,-id hearing  the  petitioner approved the scheme, subject  to  a slight  modification with which we arc not concerned.   This approval  was given on December 22, 1959.  In  pursuance  of this approved scheme the State Transport Undertaking-the 2nd respondent  before  us--made applications  for  permits  but before  the  Regional Transport Authority could  issue  such permits the present petition was filed praying, in the first place, for a writ of certiorari to quash the scheme and some consequential directions, and secondly for a wait of 911 "prohibition"  to the Regional Transport  Authority,  Hassan District, who is the third respondent before us "to  refrain from  dealing with the applications for permit made  by  the 2nd respondent unless and until they are duly published  and notice thereof is given to the petitioner and he is  allowed to   make   his  representation  thereon   regarding   their compliance or otherwise with the conditions of s. 68-F(1) of Chapter IV-A.  After learned counsel for the petitioner  had been  heard, this Court by its order dated March  21,  1961, granted  leave to the petitioner to amend the writ  petition so as to confine it to the second prayer only and directed a rule to issue only in respect of this second prayer. The only question with which we are therefore now  concerned is  whether  a writ should issue prohibiting,  the  Regional Transport Authority, Hassan District, from dealing with  the applications  for  permits  made  by  the  State   Transport Undertaking  "unless and until they are duly  published  and notice thereof is given to the petitioner and he is  allowed to make his representations thereon". The  petitioners case as regards this prayer is  that  under the  law  no permit can be granted to  the  State  Transport Undertaking until the applications for permit have been duly published  and  notice has been given to the  petitioner  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

those applications.  In support of this proposition  learned counsel  advanced  two arguments-firstly, that s.  57(3)  in Chapter IV of the Act, requires such prior publication  with notice   of  the  date  before  which   representations   in connection with the application may be submitted and that in consequence of s. 68-B of Chapter IV-A the above  provisions of  s. 57(3) of Chapter IV have to be followed.  The  second argument is that the Regional Transport Authority acts in  a quasi-judicial  capacity when dealing with applications  for permits made under s. 68-F and so the petitioner who will be affected by the issue of the permits is entitled to notice. Section  68-B  on which reliance has  been  placed  provides inter alia that the provisions of Chapter IV-A 912 shall  have  effect "notwithstanding  anything  inconsistent therewith  contained  in  Chapter  IV".   It  says   nothing positive  as  regards any of the provisions  of  Chapter  IV being applicable to matters under Chapter IV-A but  provides negatively  that  if  any question  arises  as  regards  any provisions  of  the  Act  in  Chapter  IV-A  and  there   is difficulty  in  applying  it on the  ground  that  there  is conflict  between it and some provisions of Chapter IV,  the provisions  of Chapter IV-A will prevail.  Mr.  Iyengar  has argued  that it is implicit in this provision that if  there is no such difficulty all the provisions of Chapter IV  will apply  to  matters  dealt with  under  Chapter  IV-A.   This argument,  in our opinion, is fallacious.  All that s.  68-B pre-supposes is that there are some provisions in Chapter IV which  may  apply  to matters under Chapter  IV-A;  on  that assumption  it proceeds to say that if on a matter to  which provisions of Chapter IV would prima facie apply there is  a provision in Chapter IV-A also which appears applicable  the provision in Chapter IV-A will prevail to the extent of  its inconsistency  with the corresponding provision  in  Chapter IV.   As to what provisions in Chapter IV will apply or  not s. 68-B says nothing and provides no guidance either expres- sly  or  by implication.  To find out whether  a  particular provision  in  Chapter IV (not being inconsistent  with  any provisions  in  Chap.  IV-A) will apply or not to  a  matter under  Chapter  IV-A,  we  have to  examine  the  matter  in question and then decide whether it is of such a nature that it attracts that particular provision of Chapter IV. What  then  is the matter dealt with under s.  68-F(1)  with which we are concerned in the present case?  Section 68-F(1) comes into operation when a scheme has already been approved by the State Government under s. 68-D(2).  In order that the approved  scheme  may  be implemented  the  State  Transport Undertaking  which  is  to run and  operate.  the  Transport Service under the scheme must have a permit from the  Regio- nal Transport Authority.  Section 68-F(1) provides that  the State Transport Undertaking will have to apply for a  permit (i) in pursuance of the approved 913 scheme and (ii) in the manner specified in Chapter IV.  Once that  is done, the sub-section proceeds to say "’A  Regional Transport  Authority  shall issue such permit to  the  State Transport  Undertaking", and this "notwithstanding  anything to  the contrary contained in Chapter IV." It appears  clear to  us  that the provisions of s. 57(3) have nothing  to  do with these matters dealt with by s. 68-F(1).  Section  57(3) lays on the Regional Transport Authority certain duties when it considers an application for a permit.  These  conditions are (1) to make the application available for inspection  at the office of the Authority, (2) to publish the  application or  the substance thereof in the prescribed manner  together

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

with  a notice of the date before which  representations  in connection  therewith may be submitted and the date and  the time and place at which the application and any  representa- tions,  received  will be considered.  Under s.  68-F(1)  as already  mentioned the Regional Transport Authority  has  no option  to  refuse the grant of the permit provided  it  has been  made  in pursuance of the approved scheme and  in  the manner  mentioned  in Chap.  IV.  The duty of  the  Regional Transport  Authority on receipt of the application from  the State  Transport  Undertaking for a permit is  therefore  to examine  the application for itself to see whether it is  in pursuance of an approved scheme and secondly whether it  has been made in the manner laid down in Chapter IV.  This is  a duty  which the Regional Transport Authority has to  perform for  itself  and  there is no question  of  its  asking  for assistance  from the public or existing permit  holders  for Transport  Services  on the route.  Neither  the  public  in general  nor the permit holder has any part to play in  this matter. The  provisions of s. 57(3) for making the application  made under  Chapter IV, available for inspection, for  publishing the application or a substance thereof with a notice of  the date  by which the representations may be submitted and  the date,  time  and  place when  the  representations  will  be considered  are  required to enable the  Regional  Transport Authority to come to a 115 914 correct  conclusion as to whether the application should  be granted or not.  An application not made in the manner  laid down  in Chapter IV will not be con sidered by the  Regional Transport  Authority at all.  But the mere fact that it  has been  made  in  the  proper  manner  will  not  entitle  the applicant  to  a  permit. it is the  duty  of  the  Regional Transport  Authority  to decide on a  consideration  of  all relevant matters whether the application should be  allowed. Other  operators and even the public have a legal  right  to make representations to persuade the Authority not to  grant the permit on the merits of the case.  It is for this reason that  there  was necessity to make the  provisions  in  sub- section 3 of s. 57 so that the Regional Transport  Authority may   receive  every  assistance  in  coming  to  a   proper conclusion.   When however a scheme prepared  and  published under s. 68-C has been approved and an application has  been made in pursuance of the scheme and in the proper manner  as specified  in Chapter IV nothing more remains to be  decided by  the  Regional Transport Authority.  The  nature  of  the matter dealt with under s. 68-F(1) is thus such as does  not and cannot attract any of the provisions of s. 57(3). It may be mentioned here that in Srinivasa Reddy. & Or.3. v. The State of Mysore & Ors. (1) a question was raised whether s. 57(3) applied or not to an application made under s.  68- F(1).   The Court considered it unnecessary then to go  into the  matter as on the facts of that case it was  found  that the application had not been made in the manner provided  in Chapter IV and was actually in breach of s. 57(2) of the Act and  so  no permit could be issued on such  an  application. The  provision in s. 57(2) which was applicable to  applica- tions  under  s. 68-F is that an application  for  a  permit shall  be  made not less than six weeks before the  date  on which it is desired that the permit shall take effect or  if the  Regional  Transport Authority appoints  dates  for  the receipt of such application on such dates.  In that case the Court  held that this provision in s. 57(2) is in reality  a manner of making the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

(1)  [1960] 2 S. C.R. 130. 915 application and consequently it applied to applications made under s. 68-F(1).  The provisions of s. 57(3) cannot however be said to have anything to do with the manner of making the application and the nature of the matter dealt with under s. 68-F(1)  is  such  that  provisions  of  s.  57(3)  are  not attracted, The  next argument is that the Regional Transport  Authority functions as a quasi-judicial authority when dealing with an application made by the State Transport Undertaking under s. 68-F(1).   It is said that as under s. 68-F(2) the  Regional Transport  Authority may refuse to entertain an  application for renewal of any other permit or cancel an existing permit or  modify  in  certain matters the  terms  of  an  existing permit,  for  the purpose of giving effect to  the  approved scheme  there is a lis between the existing  permit  holders and  the  State Transport Undertaking  when  an  application under s. 68-F(1) is dealt with. It  appears  to us that when deciding what  action  to  take under s. 68-F(2) the authority is tied down by the terms and conditions of the approved scheme and his duty is merely  to do what is necessary to give effect to the provisions of the scheme. , The refusal to entertain applications for  renewal of  permits  or cancellation of permits or  modification  of terms of existing permits really flow from the scheme.   The duty  is  therefore  merely  mechanical;  and  it  will   be incorrect  to  say that there is in these  matters  any  lis between  the  existing  operators and  the  State  Transport Undertaking which is to be decided by the Regional Transport Authority.   There is no justification therefore for  saving that  when  taking  action under- s.  68-F(2)  the  regional Transport Authority is exercising a quasi-judicial function. Apart  from this it has to be pointed out that action  under s. 68-F(2) is really independent of the issue of the permits under s. 68-F(1).  Once the scheme has been approved, action under  s. 68-F(1) flows from it and at the same time  action under  s. 68-F(2) flows from the same scheme.  The  argument that  the Regional Transport Authority should be held to  be exercising   quasi-judicial   function   in   dealing   with applications for permits under s. 68-F(1) 916 because of the action it may take under s. 68-F(2) therefore fails. It was next said that when the Regional Transport  Authority issues  the  permit it can attach to the  permit  conditions under  s.  48(3) of the Act.  Section 48(3)  authorises  the Regional, Transport Authority if it decides to grant a stage carriage  permit,  to  attach  to  the  permit  any  of  the conditions  specified  in  the subsection.   It  has  to  be noticed  that s. 68-F(1) does not speak of the "grant" of  a permit  but provides that the Regional  Transport  Authority shall  "issue"  a  permit.  In any  case,  if  the  Regional Transport Authority has to decide what conditions to  attach to such a permit, it is not possible to say that it is  then exercising a quasi-judicial function.  For, in deciding that matter the Regional Transport Authority is to have regard to the interests of the public but there is no question because of that, of any lis between the State Transport  Undertaking on the one hand and the public on the other. In our opinion, the Regional Transport Authority acts wholly in a ministerial capacity while dealing with an  application of  the State Transport Undertaking under s.  68-F(1).   The fact  that  on  other occasions and  in  other  matters  the Regional Transport Authority has quasi-judicial functions to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

perform cannot make its function under, s. 68-F(1) a  quasi- judicial function. Our conclusion therefore is that the petitioner’s contention that  no  permit  can  be granted  to  the  State  Transport Undertaking until the applications for permit have been duly published  and notices have been given to the petitioner  of these applications is unsound Consequently,  the  petitioner is not entitled to any   relief. The  petition is dismissed with costs.                      Petition dismissed. 917