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PETITIONER: A.   S. T. ARUNACHALAM PILLAI

       Vs.

RESPONDENT: M/S.  SOUTHERN ROADWAYS (PRIVATE) LTD.

DATE OF JUDGMENT: 29/04/1960

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. SUBBARAO, K. SHAH, J.C.

CITATION:  1960 AIR 1191  CITATOR INFO :  R          1963 SC  64  (7)

ACT: Motor   Vehicles-Stage  carriage  Permits,   variation   of- jurisdiction    of    Regional    Transport    Officer-State Government’s  Power of revision-Motor Vehicles Act, 1939  (4 Of 1939), as amended by the Madras Act, 20 Of 1948, ss. 44A, 64A.

HEADNOTE: The  question  for decision in this appeal was  whether  the Regional  Transport  Officer under the Motor  Vehicles  Act, 1939,  as amended by the Madras State Legislature,  had  the power  to vary the terms of a stage carriage permit  granted under  that Act.  The appellant, holder of a stage  carriage permit, applied on July 19, 1954, to the Regional  Transport Officer  for  a  variation of the  route  specified  in  his permit.   The  Regional  Officer  after  hearing  objections rejected  the  application.  The appellant  applied  to  the State  Government for revision of the order under s. 64A  of the  Act  and the Government after  hearing  objections  set aside  the  order  of the  Regional  Transport  Officer  and granted variation of the permit as sought for.  Against this order the respondent moved the Madras High Court under  Art. 226  of  the Constitution.  The Single judge who  heard  the matter,  following  a decision of a Division Bench  of  that Court,  held  that  the Regional Transport  Officer  had  no jurisdiction  to deal with the appellant’s  application  and the  State  Government for that very reason  could  have  no power in revision to grant the same, and set aside the order of the Madras Government: Held (per Sinha, C. J., Imam, Sarkar and Shah, jj.). Section 64A  of the Motor Vehicles Act, introduced into the  Act  by the  Madras Legislature, although couched in wide  language, does  not  confer  on  the  State  Government  any  original jurisdiction  or authorise it to pass in revision  an  order which the authority, whose order it seeks to revise, has  no jurisdiction to pass.  While undoubtedly it can set aside an order of. an authority or officer

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765 subordinate to it passed without jurisdiction under Ch.   IV of  the Act, it cannot substitute its own order directing  a variation  of  the  stage  carriage  permit  granted  to   a particular  person.  Sections 43 and 48 of the Act  make  it quite  clear that no such authority is vested in  the  State Government and the words " as it thinks fit " in s. 64A must mean within the ambit of the provisions of the Act. The words " any officer subordinate to him " used in s.  44A of  the Act, as amended by the Madras State Legislature  are of wide import and cannot be given a restricted meaning  and must  include  an  officer in any  way  subordinate  to  the Transport Commissioner. The  Regional  Transport  Officer  who  was  admittedly  and without doubt administratively subordinate to the  Transport Commissioner by virtue of the Madras Government notification dated  February  14, 1953, at the time the  application  was made  and  was  duly  authorised in  this  behalf,  had  the jurisdiction to vary the conditions of the permit issued  to the appellant. Section  44A of the Act did not depend for its operation  on any  rules to be framed under s. 133A of the Act, which  was merely an enabling section, by the Government. Consequently,  there can be no doubt that the State  Govern- ment had the power under s. 64A of the Act to vary the terms of  the  permit  which the Regional  Transport  Officer  had refused to do. B.   Veeraswamy v. State of Andhra Pradesh, A.I.R. 1959 And. Pradesh 413, approved. T.   Krishnaswamy  Mudaliar v. P. S. Palani  Pillai,  A.I.R. 1957 Mad. 599, disapproved. Per Subba Rao, J.-Section 44A of the Act does not  authorise the State Government to appoint subordinate officers to  the Transport  Commissioner  but  only  enables  it  to   confer statutory powers on officers subordinate to him.  The  State Government has made no rules under s. 133A of the Act making the   Regional   Transport  Officer   subordinate   to   the commissioner.  It is, therefore, manifest that neither under the  statute  nor  under any rules made  thereunder  is  the Regional  Transport Officer subordinate to the  Commissioner in any way within the meaning Of s. 44A of the Act. Even  assuming  that the State  Government  administratively treated  the Regional Transport Officer as a subordinate  to the Transport Commissioner and the word ’may’ in s. 133A  of the  Act  conferred a discretionary power on  it  either  to frame  rules  or not to do so, it is wrong to  say  that  it could  do  administratively what it was empowered to  do  by rules.   If  the  Government really  intended  to  make  the Regional   Transport  Officer  subordinate  to   the   State Transport Commissioner, the only way in which it could do so was by framing a rule under s. 133A(3) of the Act.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 262 of 1958. 100 766 Appeal  from the judgment and order dated July 17, 1957,  of the  Madras  High  Court, in Writ Appeal No.  110  of  1956, arising  out  of the judgment and order dated  September  3, 1956, of the said High Court in Writ Petition No. 2/1956. M.   C. Setalvad, Attorney-General of India, S.N. Andley, J. B.  Dadachanji,  Rameshwar  Nath and P. L.  Vohra,  for  the appellant.

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R.Ganapathy Iyer, N. R. Govindachari and G.  Gopalakrishnan, for respondent No. 1. 1960.  April 29.  The Judgment of Sinha, C. J.,  Imam,Sarkar and  Shah,  JJ., was delivered by Imam, J., Subba  Rao,  J., delivered a separate Judgment. IMAM,  J.-This  appeal is on a certificate  granted  by  the Madras   High  Court  as  in  its  opinion  it  involved   a substantial  question  of law to the effect  "  whether  the delegation to the Regional Transport Officer of the power to vary the conditions of a permit is valid ". The appellant is the   proprietor  of  Sri  Vinayagar  Transports,   Woriyur, Tiruchirapalli.   He  held a permit to ply his  bus  on  the route   Tiruchirapalli  Mainguard  Gate  to   Tiruchirapalli Railway Station via Palakarai and Round Tana.  He applied on July   19,   1954,  to  the  Regional   Transport   Officer, Tiruchirapalli, for variation of the route so as to ply  his bus  between Mainguard Gate and Golden Rock  via  Palakarai, Round Tana, Tiruchirapalli Railway Station and retrace again to  Round  Tana  and thence to Golden  Rock.   The  Regional Transport  Officer notified this application  for  variation and called for objections.  The appellant’s application  and the objections thereon were heard on July 15, 1955, but  the Regional  Transport Officer rejected the  application.   The appellant filed a Revision Petition before the Government of Madras  under s. 64A of the Motor Vehicles Act,  hereinafter called the Act, s. 64A having been introduced into that  Act by  the  Legislature  of the State of  Madras.   The  Madras Government  after  having heard objections to  the  Revision Petition,  by its order dated December 28, 1955,  set  aside the order of the Regional Transport Officer and directed the grant  of  the variation in the permit of the  appellant  as prayed  for  by  him.   Against the,  order  of  the  Madras Government the respondent, 767 the Southern Roadways (Private) Ltd., hereinafter called the respondent,  filed  a  petition  under  Art.  226,  of   the Constitution  in the Madras High Court on January  2,  1956, for the issue of a writ of certiorari to quash the order  of the Government of Madras. When  the petition came up for hearing  before  Rajagopalan, J., the respondent raised a plea which was not taken in  the petition  under Art. 226 of the Constitution to  the  effect that  the Regional Transport Officer had no jurisdiction  to grant  the  variation  asked for by the  appellant  and  the Government  had  likewise  no  jurisdiction  to  grant,   in revision, what the Regional Transport Officer himself  could not  have  granted.   This plea was made  on  account  of  a Division  Bench  decision of the Madras High Court  in  Writ Appeal  No. 107 of 1955, arrived at since the filing of  the petition,  wherein it was held that the  Regional  Transport Officer had no jurisdiction to deal with an application  for variation  of the conditions of a permit.  Rajagopalan,  J., following  the decision in Writ Appeal No. 107 of 1955  held that  the Regional Transport Officer had no jurisdiction  to deal with the appellant’s application for variation and that it  followed  that the Government of Madras had  equally  no jurisdiction  to grant the variation on a revision  petition filed  against the order of the Regional Transport  Officer. The  learned  Judge accordingly set aside the order  of  the Government of Madras dated December 28, 1955, without  going into  the other contentions raised by the respondent in  its petition under Art. 226.  The appellant appealed against the decision  of  Rajagopalan,  J. Although in  the  appeal  the correctness  of the decision in Writ Appeal No. 107 of  1955 was questioned it was not pressed because of the decision of

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the Full Bench of the Madras High Court in Writ Appeals Nos. 56  and 57 of 1956 decided on April 12, 1957.  The  argument in the present case therefore proceeded on the footing  that the  Regional  Transport  Officer,  Tiruchirapalli,  had  no jurisdiction  to deal with the appellant’s  application  for variation. In  the High Court on behalf of the appellant it  was  urged that  the respondents had submitted to the  jurisdiction  of the Regional Transport Officer and 768 therefore  could  not at a later stage  obtain  the  discre- tionary writ of certiorari on the ground that there was lack of  jurisdiction.   It was next contended that even  if  the Regional Transport Officer bad no jurisdiction to deal  with the  appellant’s application for variation the order of  the Government  of Madras which was sought to be  quashed  could not  be  said to be one passed without  jurisdiction  or  in excess   of   jurisdiction  because   the   Government   had undoubtedly power to pass the order in question under s. 64A of  the Act.  Both these contentions were rejected  and  the decision of Rajagopalan, J., was affirmed.  The High  Court, however,  granted a certificate that the case was a fit  one for appeal to this Court. The  principal question for consideration in this appeal  is whether the Regional Transport Officer had the power to vary the  conditions  of a permit to ply a  stage  carriage.   In order  to decide that question some sections of the Act,  as amended  by  the Legislature of the State  of  Madras,  will require  consideration,  particularly the provisions  of  s. 44A.   But  before  we  proceed to do  that  the  other  two questions  which were decided against the appellant  by  the High Court may first be considered. In our opinion, although the respondent had submitted to the jurisdiction  of the Regional Transport Officer and had  not in  his petition under Art. 226 in the High Court taken  the objection  that  officer  had no jurisdiction  to  vary  the conditions  of  a permit, the High Court  acted  rightly  in allowing the respondent to urge that the Regional  Transport Officer  had  no jurisdiction to vary the  conditions  of  a permit.  It was not until the decision of the High Court  in Writ  Appeal No. 107 of 1955 that it became  the  considered view  of that Court that the Regional Transport Officer  bad no  jurisdiction to make any such variation.  When  the  law was so declared by the High Court it could not reasonably be said that the High Court erred in allowing the respondent to take this point although in its petition under Art. 226  the point  had not been taken.  This was obviously  because  the decision  of the High Court in Writ Appeal No. 107  of  1955 had  not  been  given  at the time  of  the  filing  of  the petition, 769 Since  the  question went to the root of the matter  and  it involved the question whether the Regional Transport Officer had jurisdiction to vary the conditions of a permit the High Court,  faced with a Division Bench decision of its  own  on the  matter,  could not very well refuse permission  to  the respondent  to  rely  on that decision  in  support  of  its petition  questioning  the  validity of  the  order  of  the Government of Madras made under s. 64A of the Act. It had been strongly urged in this Court on behalf of  the appellant that on a proper construction of s.     64A of the Act  there  was ample power in the Government of  Madras  to make  an  order  directing  the  variation  sought  in   the conditions  of the permit of the appellant, even though  the Regional  Transport  Officer had no jurisdiction to  do  so.

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Section 64A empowered the Government of Madras to pass  such orders as it thought fit with respect to any order passed or proceedings  taken  under  Chapter  IV of  the  Act  by  any authority  or officer subordinate to it for the  purpose  of satisfying  itself of the legality, regularity or  propriety of  the  order  or proceeding, when it had  called  for  the records  of  the case.  In our opinion, s. 64A  is  a  power vested in the State Government by way of revision of  orders passed  under  Chapter  IV of the Act by  any  authority  or officer  subordinate to it.  This is not a power  which  the State Government could exercise by way of original jurisdic- tion  which was vested elsewhere.  In our opinion,  although the  words " may pass such order in reference thereto as  it thinks  fit " are wide in expression, they do not mean  that the  State  Government could pass an order  in  exercise  of revisional jurisdiction which the authority whose order  the Government  was revising had no jurisdiction to  pass.   The State Government could undoubtedly set aside an order of  an authority   or  officer  subordinate  to  it  who   had   no jurisdiction to pass the order in question under Chapter  IV but  it  could not substitute for that order its  own  order directing  the variation in the conditions of the permit  of the  appellant.   It is significant that s. 43  which  deals with the power of the State Government to control 770 Road  Transport does not mention that such a Government  has the  power to vary the conditions of a permit, although  the various   powers  conferred  by  that  section   are   fully specified,  including  the power to  vary  the  notification issued  under the section.  If the Act had intended to  give the power to the State Government to vary the conditions  of a  stage carriage permit granted to a particular  person  it would  have  specified such a power in  this  section.   The authority  which  is empowered to vary the conditions  of  a permit is stated in s. 48A which certainly is not the  State Government.  Under the Act, therefore, no such authority was vested in the State Government and the words in s. 64A "  as it thinks fit " must mean within the ambit of the provisions of the Act. Coming  now to the question whether the  Regional  Transport Officer  had the power to vary the conditions of the  permit of the appellant it would be necessary to construe s. 44A of the  Act.  Before we proceed to do so, reference to  certain sections of the Act and the Rules framed thereunder would be necessary  as  well as certain relevant facts.   Section  42 prohibits the owner of a transport vehicle to use or  permit its use, save in accordance with the conditions of a  permit granted or counter-signed by a Regional or Provincial Trans- port  Authority.  Reference to s. 43 has already  been  made which  deals  with  the power of  the  State  Government  to control  road  transport.  Section 43A  empowers  the  State Government to issue such orders and directions of a  general character  as  it may consider necessary in respect  of  any matter  relating  to road transport to the  State  Transport Authority or Regional Transport Authority and such Authority shall  give  effect  to  all  such  orders  and  directions. Section 44 empowers the State Government by notification  in the Official Gazette to constitute a State Transport  Autho- rity  and  Regional  Transport Authorities,  the  former  to exercise and discharge the functions specified in sub-s. (3) and the latter to exercise powers as may be specified in the notification   in   respect  of  each   Regional   Transport Authority.  Section 44A which is incorporated by the  Madras Amending Act reads: 771

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"  The  State  Government  may  appoint  a  State  Transport Commissioner and notwithstanding anything contained in  this Act,  may, by notification in the Fort St.  George  Gazette, authorize  such Commissioner or any officer  subordinate  to him,  to  exercise  and  discharge  in  lieu  of  any  other authority  prescribed by or tinder this Act such powers  and functions as may be specified in the notification ". Section 45 deals with applications for a permit and  directs that they shall be made to the Regional Transport  Authority of  the region in which it is proposed to use  the  vehicle. Section  46 states the matters which shall be stated in  the application for a permit.  Section 47 provides the procedure to  be  observed  by  a  Regional  Transport  Authority   in considering   applications  for  stage   carriage   permits. Section  48  empowers  a  Regional  Transport  Authority  to restrict the number of stage carriages for which permits may be granted in the region or in any specified area or on  any specified  route within the region and to impose  conditions on  such permits.  One of these conditions is  contained  in cl. (d)(ii-a) which is to the effect that stage carriage  or stage carriages shall be used only on specified routes or in a  specified area.  Section 48A provides for the  alteration of the conditions attached to a permit and reads: "  Any  conditions attached to a stage  carriage  permit  in pursuance  of  cl. (d) of s. 48 may at any time  be  varied, cancelled  or  added to by the  State  Transport  Authority, provided  that  this  power shall not be  exercised  to  the prejudice  of  the holder of the permit without  giving  not less than three months’ notice to him." Section  133A(1)  authorises the State  Government  for  the purpose of carrying into effect the provisions of the Act to establish  a  Motor Vehicles Department and  to  appoint  as officers thereof such persons as it thinks fit.  Sub-s.  (3) authorises  the State Government to make rules  to  regulate the  discharge by officers of the Motor Vehicles  Department of  their functions and in particular and without  prejudice to  the generality of the foregoing power to  prescribe  the uniform to be 772 worn  by  them, the authorities to which they shall  be  sub ordinate,  the  duties to be performed by them,  the  powers (including  the powers exercisable by police officers  under the  Act)  to  be  exercised  by  them  and  the  conditions governing  the exercise of such powers.  No rules, in  fact, had been framed. It  will  be seen from what has been stated that it  is  the State  Transport Authority and no other which is  authorised under  s. 48A to vary the conditions of a permit of a  stage carriage.   Section  44A,.  however,  authorises  the  State Government  to appoint a State Transport  Commissioner.   It further provides that notwithstanding anything contained  in the  Act the State Government may by notification  authorise the State Transport Commissioner or any officer  subordinate to  him  to  exercise and discharge in  lieu  of  any  other authority  prescribed  by or under the Act such  powers  and functions as may be specified in the notification.  By  this section,  although  under s. 48A it is the  State  Transport Authority Which can vary the conditions of a stage  carriage permit,  the  State Government  could,  notwithstanding  the provisions  of that section, authorise the  State  Transport Commissioner  to exercise such powers in lieu of  the  State Transport Authority.  It could also confer such power on  an officer  subordinate  to the State  Transport  Commissioner. The vital question for determination is, how are the words " any  officer subordinate to him " to be construed.  In  con-

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struing  these words the provisions of s. 133A will have  to be  kept  in  mind  as it was contended  on  behalf  of  the respondent that these sections should be read together.   It was urged on behalf of the respondent that under s. 133A (3) as  to  who was subordinate to whom in  the  Motor  Vehicles Department  had to be prescribed by rules.  As no rules  had been framed it could not be said that the Regional Transport Officer was subordinate to the State Transport Commissioner. The  Full Bench of the Madras High Court in the case  of  T. Krishnaswamy  Mudaliar  v.  P.  S.  Palani  Pillai  (1)  had occasion  to consider whether a Regional  Transport  Officer was subordinate to the State Transport Commissioner for  the purposes of the Act.  Three (1)  A.I.R. 1957 Mad. 599. 773 views  were  pressed before it.  The first view,  which  was favoured  by  a  Division Bench of that Court,  was  to  the effect  that  the  word  ’subordinate’ in  s.  44A  meant  " administrative  subordination  ".  The  seconds,,  view  was pressed by the Advocate-General of Madras who had urged that the  word  ’subordinate’ in the  section  meant  "functional subordination" and the third view was pressed by Mr. Nambiar to the effect that the word ’subordinate’ meant "  statutory subordination ". It was the third view which was accepted by the  Full Bench and the High Court expressed its opinion  in the following words:- "  Of  the three views placed before us we are  inclined  to prefer the third.  It appears to us to be the most  rational and the most free from objections.  It is in accord with all well  established rules of interpretation of  Statutes.   It does not require as the theory of ’functional subordination’ seems  to  require, the introduction of now words  into  the section.  It has the merit of being more flexible of  powers not  merely  at the State level but at  the  regional  level also.   It  ensures  that  there  will  be  no  transfer  or delegation of powers except to officers whose  subordination has been determined by rules properly framed under the  Act. It also ought to avoid the anomaly that has now occurred  of a person in the position of a Secretary of a body being  em- powered  to vary the condition of a permit granted  by  that body.  We therefore adopt this view." The  High  Court  in rejecting the  view  submitted  by  the Advocate-General  observed  that there  were  no  qualifying words whatever to the word ’subordinate’ in s. 44A. The Full Bench decision of the Andhra Pradesh High Court  in the case of B. Veeraswamy v. State Of Andhra Pradesh (1) did not  agree with the Full Bench decision of the  Madras  High Court.   The  Andhra Pradesh High Court was of  the  opinion that   the  Regional  Transport  Officer  was   an   officer subordinate to the Transport Commissioner within the meaning of s. 44A of the Act.  It laid emphasis on the word " any  " and observed that word excluded limitation or (1) A.I.R. 1959 And.  Pradesh 413. 774 qualification and connoted wide generality.  It comprehended not  only  the officer whose subordination  was  statutorily determined,  but  all  eligible  subordinate   officers  and therefore  the  Regional Transport Officer came  within  the ambit of the expression " any officer subordinate " used  in s. 44A.  Having examined the reasons given in the  decisions of  the  Full Bench of the Madras High Court  and  the  Full Bench  of the Andhra Pradesh High Court we are generally  in agreement  with  the view taken by the Andhra  Pradesh  High Court for the reasons which we now proceed to state. We  have  not on the record any material to  show  when  the

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Madras  Government appointed a State Transport  Commissioner nor have we any notification in the Fort St. George  Gazette as  to what powers he or an officer subordinate to  him  was authorized  to exercise and discharge in lieu of  any  other authority  prescribed by or under the Act.  The Madras  Road Traffic  Code  of  1940  shows that on  May  21,  1947,  the Governor  of  Madras  constituted  a  Provincial   Transport Authority  for  the Province (now the State)  of  Madras,  a Regional  Transport Authority for the district and  city  of Madras  and a Regional Transport Authority for each  of  the other  districts in the Province (now the State) of  Madras. This  Code  also contains the Madras Motor  Vehicles  Rules, 1940,  hereinafter  called the Rules.  The Rules  came  into force  on  April 1, 1940.  Under Rule 3(c)  "  Central  Road Traffic  Board  " or "Central Board"  means  the  Provincial Transport  Authority  constituted for the  State  of  Madras under  sub-s.  (1)  of B. 44 of the  Act.   This  definition obviously  must  have been inserted in the Rules  after  the constitution  of the Provincial Transport Authority  in  the year  1947.  This definition was again altered  on  December 2O,  1955, and for the words " Central Road Traffic Board  " or " Central Board " the words " State Transport Authority " was substituted.  On the same date a further definition  was added  to  the Rules by the insertion of cl. (m) in  Rule  3 which was to the effect that " Transport Department "  means the  Motor Vehicles Department set up under s. 133A  of  the Act.  The Government of Madras issued a Notification No.  G. 0. MS. 527 on February 14, 1953, wherein it was stated  that prior 775 to  the decision of the Madras High Court in  Writ  Petition No.  806  of 1951 the Regional  Transport  Authorities  were varying  whenever  necessary  all  the  conditions  of   the permits, but according to the decision of the High Court  in that  petition the Regional Transport Authorities could  not vary  the  existing conditions of a  stage  carriage  permit imposed  under s. 48(d) of the Act and that it was only  the State Transport Authority which could do so under s. 48A  of the  Act.  The decision of the High Court resulted in  great administrative   inconvenience  as  all   applications   for variation of conditions of permit would have now to be  made to  the State Transport Authority which involved  delay  and inconvenience  to  operators.  It further  stated  that  the Government  of India had under consideration a  proposal  to amend  s.  48  of  the Act so as  to  empower  the  Regional Transport Authorities to vary all conditions of permits, but some  time  would  be  taken  to  carry  out  the  necessary legislation.   Pending  the legislation  the  Government  of Madras  had decided to empower Regional Transport  Officers, as  a temporary measure, to vary conditions of  permits  now dealt   with   by  the  State  Transport   Authority.    The notification further went on to say that in exercise of  the powers conferred by s. 44A of the Act the Governor of Madras authorized   the   Regional  Transport  Officers   and   the Secretary,  Road  Traffic  Board, Madras,  to  exercise  the powers  and discharge the functions of the  State  Transport Authority under s. 48A, 51A and 56A of the Act.  On  October 20,1955, the Government of Madras issued a further notifica- tion  reorganizing  the  Motor  Transport  Department   with reference to the Motor Vehicles (Madras Amendment) Act, 1944 (Act  XXXIX  of  1944).  According to  this  notification  a Member  of  the  Board of Revenue  should  be  appointed  as Transport  Commissioner  under  s. 44A of the  Act  and  the present post of Transport Commissioner should be  abolished; that  an  officer  of the  Transport  Department  should  be

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appointed as State Transport Authority who will also be  the Assistant   Transport   Commissioner;  that  the   post   of Secretary,  Central  Road  Traffic  Board,  should  be   re. designated as Secretary, State Transport Authority 776 that  Collectors  of  districts  in  the  mofussil  and  the Commissioner  of  Police  in the City of  Madras  should  be appointed as Regional Transport Authorities under  s. 44  of the  Act;  that  the  Regional  Transport  Officers  in  the mofussil  and the Deputy Commissioner of Police  (Traffic  & Licensing)  in the Madras City should be the Secretaries  to the  Regional Transport Authorities and that an  officer  of the grade of a District Judge should be appellate  authority prescribed  under s. 64(1) of the Act, as amended,  to  deal with  appeals against the orders of the  Regional  Transport Authorities  and  be  designated  as  the  State   Transport Appellate  Tribunal.  Under cl. (2) of the notification  the Member of the Board of Revenue to be appointed as  Transport Commissioner  would be the Head of the Transport  Department and would have general responsibility for administration  of the  Act.  He would be empowered by the Government under  s. 44A  to  exercise  the powers now  exercised  by  the  State Transport Authority under sub-ss. 3(a) and (c) and (4) of s. 44  of  the Act.  In the discharge of  these  functions  the Transport Commissioner will have administrative control over the  Organisation  at present working  under  the  Transport Commissioner.  Under cl. (4) (ii) the powers under ss.  48A, 51  A  and 56A of the Act to alter the conditions  of  stage carriage  permits,  contract  carriage  permits  and  public carriers  permits,  exercised  by  the  Regional   Transport Officers,  would  hereafter  be exercised  by  the  Regional Transport   Authorities.   Under  cl.  5(1)   the   Regional Transport  Officer  would be the Secretary to  the  Regional Transport  Authority and ,in that capacity he  would  assist the  Regional Transport Authority in the performance of  the functions  prescribed  in cl. (4).  It is,  however,  to  be remembered that when on July 19, 1954, the appellant applied to the Regional Transport Authority for the variation of the conditions of his permit, the Notification No. G.O. MS.  527 dated February 14, 1953, of the Government of Madras was  in force  by virtue of which Regional Transport  Officers  were authorised   to  discharge  the,  functions  of  the   State Transport Authority under ss. 48A, 51 A and 56A of the Act. 777 In  paragraph  6 of the statement of the case filed  by  the respondent  it  was stated that in the exercise Of  A,’  the powers conferred under s. 44(1) of the Act the Government of Madras  constituted  Provincial and  so  Regional  Transport Authorities.   It also set up a Motor  Transport  Department with  a Transport Commissioner as its head and  officers  in that  Department,  in  the lower scale,  were  the  Regional Transport Officers who functioned as the Secretaries of  the respective  Regional Transport Authorities called  the  Road Traffic  Board.  It was further stated in paragraph  7  that although  a Regional Transport Officer was a subordinate  of the  Transport  Commissioner on the administrative  side  he could  not  be held to be a subordinate officer  within  the meaning  of  s. 44A.  The State Government may  establish  a Motor Vehicles Department and appoint officers thereto under s. 133A, but mere appointment of officers in that Department could  not  invest  them  with  statutory  functions  to  be discharged under the Act and under the Rules.  Section  133A contemplates  framing of rules to regulate the discharge  by officers  of  the department of their functions as  also  to state  the  authorities  to  whom  such  officers  shall  be

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subordinate  and the duties to be per. formed by  them.   It was  not suggested that any duties or powers of a  statutory nature  had been vested in the Transport  Commissioner;  nor was  there  any  rule showing that  the  Regional  Transport Officer  is a subordinate of the Transport Commissioner  for the  purposes  of  the Rules.  The  statement  of  the  case further   stated   that  s.  44A   required   a   functional subordination and not merely an administrative one. The  Madras Financial Code, Vol. 11, Appendix 1,  shows  the list  of Heads of Departments of the Government  of  Madras. The  Transport  Commissioner  is  shown as  the  Read  of  a Department.   The Half-Yearly List of Gazetted  Officers  in the  Transport Department corrected upto the 31st  of  July, 1955,  shows  that the Transport Commissioner  is  also  the Chair.  man, Central Road Traffic Board, Madras, and  subor- dinate to him are the Secretary, Central Road Traffic Board, Madras, Assistant Secretary, Road Traffic Board, Madras  and Regional Transport Officers. 778 There  can  be  no  question  therefore  that  the  Regional Transport Officers are officers subordinate to the Transport Commissioner.   It  is perhaps for this reason     that  the respondent  admits  that the  Regional  Transport  Officers, administratively,   are   subordinate   to   the   Transport Commissioner.   Section  44A  speaks merely  of  an  officer subordinate  to  the  Transport  Commissioner  to  whom   by notification  the  Government  of  Madras  may  confer   the authority  in lieu of any other authority prescribed  by  or under the Act to discharge the powers and functions of  that authority.   It was, however, argued that until  rules  were framed under s. 133A specifying as to who is subordinate  to which  authority  for  the  purposes  of  the  Act  and  the statutory   functions  to  be  performed  under   the   Act, administrative  subordination  is not what  is  contemplated under s. 44A.  On the other hand, on behalf of the appellant it has been urged that effect must be given to the words  of s. 44A which did not in tile least indicate in what way  the officer has to be subordinate to the Transport Commissioner. It  was  worthy of notice that s. 44A authorized  the  State Government,  notwithstanding anything contained in the  Act, to  authorize  any  officer  subordinate  to  the  Transport Commissioner to exercise and discharge in lieu of any  other authority  such powers and functions as may be exercised  by that  authority.  The section did not depend upon any  rules to  be  framed under s. 133A.  Furthermore, s. 133A  was  an enabling section by which a State Government could, if it so wished,  for  the  purpose,  of  carrying  into  effect  the purposes  of the Act establish a Motor Vehicles  Department. Until  such  a Department was established  the  question  of framing rules under the section did not arise. There  is no clear material on the record or in  the  Madras Road Traffic Code from which it can be ascertained precisely as  to  when  the  Madras  Government  established  a  Motor Vehicles  Department.   It  is significant,  however,  by  a notification  dated December 20, 1955, cl. (m) was added  to Rule  3  of  the  Rules and this  stated  that  "  Transport Department  "  means the Motor Vehicles  Department  set  up under s. 133A 779 of   the  Act.   Apparently,  until  this   date   Transport Department  was  something  other than  the  Motor  Vehicles Department  set up under s. 133A of the Act.  It  is  clear, therefore, that on February 14, 1953, when the  Notification G.O. MS.  No. 527 was issued by the Government of Madras the Regional Transport Officers were officers subordinate to the

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Transport Commissioner.  Even if at some time or the other a Motor Vehicles Department had been set up by the  Government of Madras admittedly the Government of Madras bad framed  no rules  Linder  s. 133A(3).  If rules had been  framed  under that  section  and they showed that the  Regional  Transport Officers were not subordinate to the Transport  Commissioner then a question might well have arisen as to how the words " any  Officer subordinate to him " should be construed  owing to  a conflict between the Regional Transport officer  being administratively  subordinate to the Transport  Commissioner and yet not subordinate to him by virtue of the rules framed under  s. 133A.  Since, however, no rules have  been  framed under  this  section,  so far as s. 44A  is  concerned,  any officer who is subordinate to the Transport Commissioner  in any way must include the Regional Transport Officers in  the Transport  Department.   The words of the section  are  wide enough  for  this interpretation and they are  incapable  of being  given the restricted meaning suggested on  behalf  of the  respondent.  It was, however, suggested that  anomalies may  occur  if  s. 44A is construed  so  widely,  because  a Regional  Transport  Officer was a Secretary of  a  Regional Transport  Authority  and  therefore  subordinate  to   that authority  and  yet  he  could  be  empowered  to  vary  the conditions of a permit which the State Transport  Authority, to  which the Regional Transport Authority  is  subordinate, may  have declined to do.  In the matter  of  interpretation such  considerations cannot be of much assistance.   If  the words  of  s.  44A  are wide  enough  to  mean  any  officer subordinate to the Transport Commissioner they must be given effect  to.  In the matter of interpretation a  Court  could not,  if the words were plain enough, proceed on  the  basis that  possibly  the  Government of  Madras  may  misuse  its powers, 780 We  accordingly  hold that the Regional  Transport  Officer, Tiruchirapalli, had jurisdiction to vary the conditions of a permit by virtue of the power conferred Y.   on  him by  the Notification  No. G.O. MS. 527 issued by the  Government  of Madras.   Consequently, that Government had the power  under s. 64A to do that which the Regional Transport Officer could have done but had refused to do. In our opinion, the appeal must be allowed and the judgments of  the single Judge and Appellate Court of the  High  Court must  be set aside and the case remanded to the  High  Court for  the rehearing of the writ petition by the single  Judge as several questions which were raised in that petition have not been decided by him.  He had allowed the petition solely on the ground that the decision of the Government of  Madras must  be set aside as the Regional Transport Officer had  no jurisdiction  to vary the conditions of the permit and  that being  so  the Government of Madras could not make  such  an order  in the exercise of its revisional jurisdiction.   The case  will  accordingly  go back to  the  single  Judge  for decision  on  the other points raised in the  writ  petition filed by the respondent. The appellant is entitled to his costs of this appeal. The costs in the High Court will abide the result. SUBBA  RAO,  J.-I  have had the advantage  of  perusing  the judgment  of  my  learned  brother, Imam,  J.  I  regret  my inability  to agree with him in regard to the main  question raised  in the case, namely, whether the Regional  Transport Officer  is subordinate to the State Transport  Commissioner within the meaning of s. 44A of the Motor Vehicles Act, 1939 (4 of 1939)(hereinafter referred to as the Act).  The  facts are fully stated by my learned brother and it is not  neces-

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sary to restate them here. Section 44A was inserted in the Act by the Madras Act 20  of 1948 and it reads: "  The  State  Government  may  appoint  a  State  Transport Commissioner, and notwithstanding anything contained in this Act,  may, by notification in the Fort St.  George  Gazette, authorize  such Commissioner or any officer  subordinate  to him, to exercise 781 and  discharge in lieu of any other authority prescribed  by or  under  this  Act, such powers and functions  as  may  be specified in the notification." This section empowers the State Government to appoint only a State  Transport Commissioner and does not confer any  power on it to appoint any officer subordinate to him; that  power must  be  found  elsewhere  in the Act  or  the  rules  made thereunder.   This  section also does not enable  the  State Government to confer any powers on or entrust any  functions to,  the said Commissioner other than those  exercisable  by any authority under the Act.  On the interpretation of  this provision  there  is a conflict of views  between  the  full bench  decision of the Madras High Court in T.  Krishnaswamy Mudaliar  v.  P.  S. Palani Pillai (1) and  the  full  bench decision  of the Andhra Pradesh High Court in B.  Veeraswamy v.  State  of  Andhra  Pradesh (2).   In  the  former  case, Balakrishna Ayyar, J., delivering the judgment of the Court, summarized his views thus at p. 602: "  Of  the three views placed before us we are  inclined  to prefer  the third (statutory subordination).  It appears  to us  to  be  the  most  rational  and  the  most  free   from objections.  It is in accord with all well established rules of  interpretation of Statutes.  It does not require as  the theory of " functional subordination " seems to require, the introduction  of  new words into the section.   It  has  the merit of being more flexible and practical since it  permits of  the transfer or delegation of powers not merely  at  the State level but at the regional level also. It  ensures that there will be no transfer or delegation  of powers  except  to  officers  whose  subordinate  has   been determined by rules properly framed under the Act.  It  also ought to avoid the anomaly that has now occurred of a person in the position of a secretary of a body being empowered  to vary  the  condition of a permit granted by that  body.   We therefore adopt this view." On the other hand, Satyanarayana Raju, J., speaking for  the full  bench of the Andhra Pradesh High Court, in the  latter case summarizes his views thus at p. 416: (1) A.I.R. 1957 Mad. 599. (2) A.I.R. 1959 A.P. 413. 102 782 The  Regional  Transport  Officer is an  individual  who  is invested  with the authority and is required to perform  the duties incidental to an office and is therefore an  officer. In  the performance of his various duties, he is subject  to the direction and control of the Transport Commissioner.  He is   thus   an   officer  subordinate   to   the   Transport Commissioner." The question is which of the two views is correct.  It falls to  be  decided on the provisions of the Act and  the  rules framed  thereunder.  The Act was passed to  consolidate  and amend  the law relating to motor vehicles.  It deals with  a variety  of  subjects relating to motor  vehicles,  such  as licensing  of  drivers  (Ch.  11),  registration  of   motor vehicles (Ch. 111), control of transport vehicles (Ch.  IV),

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construction,  equipment and maintenance of  motor  vehicles (Ch.   V),  control  of traffic (Ch.   VI),  motor  vehicles temporarily leaving or visiting India (Ch.  VII),  insurance of  motor  vehicles against third party risks  (Ch.   VIII), offences,   penalties,   and  procedure   (Ch.    IX),   and miscellaneous (Ch.  X).  Each chapter, with the exception of ch.   X, provides for a particular aspect relating to  motor vehicles  and  is,  within its  range,  self-contained,  and contains  a  separate  provision  conferring  power  on  the Government  to make rules for the purpose of  carrying  into effect the provisions of that chapter.  Section 133A of  the chapter  dealing  with  miscellaneous  matters  enables  the Government,  for  the purpose of carrying  into  effect  the provisions  of  the  Act,  to  establish  a  motor  vehicles department,  to appoint officers to the said department,  to make  rules,  inter alia, to regulate  their  functions  and duties  and  name  the authorities to  whom  they  shall  be subordinate.   In short, the Act is comprehensive and  self- contained; the powers and duties of the various  authorities and  their  relationship  inter se are  all  laid  down  and regulated  by the provisions of the Act and the  rules  made thereunder. With this background let us look at the relevant  provisions of  ch.   IV  of  the Act and  the  rules  made  thereunder. Chapter  IV  deals with " Control of Transport  Vehicles  ". Under  s. 42, no owner of a transport vehicle shall  use  or permit the use of the vehicle in 783 any public place save in accordance with the conditions of a permit.  Section 43 confers power on the State Government to control  road transport.  Section 43A which was inserted  in the Act by Act 20 of s, 1948 enables the Government to issue administrative  directions to Transport Authorities  created under the Act.  Section 44 empowers the State Government  to constitute  for  the State a State Transport  Authority  and Regional  Transport  Authorities for  different  regions  to exercise and discharge throughout their respective areas the powers  and  functions specified in the Act.   Section  44A, which  was  inserted  by  Madras Act  20  of  1948,  further empowers  the State Government to appoint a State  Transport Commissioner  and  by  notification  authorize  him  or  any officer subordinate to him to exercise and discharge in lieu of  any other authority prescribed by or under the Act  such powers   and   functions  as  may  be   specified   in   the notification.   The duties and functions of  this  Authority and its subordinate are confined only to notified  statutory functions and duties imposed on other Authorities under this Act  in whose place they are appointed.  Sections 45  to  56 lay  down  the  procedure to be  followed  by  the  Regional Transport Authority in issuing permits in respect of  stage, contract,  private  and  public carriages  and  also  confer powers  on the said Transport Authority to vary, cancel  all or any of the conditions attached to such permits.   Section 58 deals with the duration and renewal of permits and s.  59 gives  the  statutory  conditions  attached  to  a   permit. Section  60 enables the Transport Authority which granted  a permit  to  cancel or to suspend it on any  of  the  grounds mentioned therein.  Section 64 confers a right of appeal  on an  aggrieved party to prefer an appeal against an order  of the  State  or  Regional  Transport  Authority  within   the prescribed  time to the prescribed Authority in  respect  of matters  mentioned  therein.  Section 64A  gives  revisional jurisdiction to the State Government to call for the records of any order passed by any Authority or officer  subordinate to  it for the purpose of satisfying itself as to the  lega-

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lity,  regularity  or propriety of such order.   Section  68 confers on the State Government power to make rules 784 for  the purpose of carrying into effect the  provisions  of this  chapter;  and under sub-s. (2)(a)  thereof  the  State Government  is  authorized to make rules in respect  of  the period  of appointment and the terms of appointment  of  and the  conduct  of business by Regional  and  State  Transport Authorities and the reports to be furnished by them. This chapter, therefore, follows the same pattern adopted in the  Act.  It creates Authorities, defines their powers  and duties,   and   provides  for  the   regulation   of   their relationship inter se. In  exercise of the powers conferred under s. 44, the  State Government  constituted  in  the  State  a  State  Transport Authority  and  also  Regional  Transport  Authorities   and appointed  members to the said bodies.  The constitution  of the  said  bodies  was changed from time to  time.   At  the crucial period, i.e., on July 19, 1954, the State  Transport Authority  was described as the Central Road  Traffic  Board (C.   R.  T. B.) and its Chairman was  the  State  Transport Commissioner.   So  too,  the  State  Government   appointed Regional  Transport  Authorities, described as  Boards,  and from  time  to time changed their composition.   During  the period  in  question  the  Regional  Transport   Authorities consisted of District Magistrate, District Superintendent of Police, the President, District Board, and one  non-official person to be nominated by the Government. It also appears from the judgment of Krishnaswamy Naidu, J., who  referred the question to the full bench of  the  Madras High  Court, that the State Government established  a  Motor Vehicles  Department under s. 133A of the Act and  appointed Regional Transport Officers.  Their powers are regulated  by the  rules made under the Act.  Under r. 124,  the  Regional Transport  Officer  is  made  the  Secretary  and  executive officer   of  the  Board,  i.e.,  the   Regional   Transport Authority.   Rules 131, 134, 134B and 135 define the  duties to  be  performed by the Secretary.  Rule 134A  enables  the Board, for the prompt and convenient discharge of  business, to delegate to the Secretary functions described under  that rule.   Rule  134A  authorizes the  Board  to  give  general instructions as 785 to  the  manner in which the Secretary  shall  exercise  the powers  delegated to him.  Under r. 147, appeals lie to  the Central Board against particular orders of the Secretary and the  Board.   These  rules  positively  establish  that  the Regional  Transport  Officer is subordinate  to  the  Board, i.e.,  the Regional Transport Authority.  He  has  statutory duties and functions and in discharge of those duties he  is under  the  control of the Board and in the matter  of  some quasi  judicial  duties an appeal lies to the  Central  Road Traffic Board.  It is, therefore, manifest that the Regional Transport Officer is appointed by the Government in exercise of its powers under s. 133A of the Act, that his duties  are statutorily  defined  and that under the rules  he  is  made subordinate  to  the  Board, i.e.,  the  Regional  Transport Authority. Now  coming to the State Transport Commissioner,  the  State Government is authorized to appoint him under s. 44A of  the Act,  which  was inserted in the year 1948.  He  is  also  a statutory  authority.   Both the parties  proceeded  on  the basis that the State Government established a Motor Vehicles Department  and  the Commissioner was one of  its  officers. The  division bench of the Madras High Court which  referred

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the  question to the full bench also accepted the fact  that the  Madras Government created a Motor  Vehicles  Department under s. 133A of the Act and the Commissioner is an  officer of  that Department.  The full bench of the  Andhra  Pradesh High  Court also founded its conclusion on the fact  that  " the  Transport Commissioner is constituted the head  of  the department   of  transport  which  is  the  Motor   Vehicles Department ". That apart, cl. (m) which was inserted in r. 3 on  December  20, 1955, clarifies the position  by  enacting that   the  Transport  Department  is  the  Motor   Vehicles Department  set  up  under  s. 133A  of  the  Act.   It  is, therefore, clear that the State has created a Motor Vehicles Department  and appointed the Commissioner as an officer  in that  Department.   Neither  s. 44 nor  s.  133A  makes  any officer  subordinate to the said Commissioner.   Section  44 only  enables the State Government to confer on  him  powers and  duties and functions entrusted to any  Authority  under the Act, 786 No  notification  issued by the Government  authorizing  the Commissioner to discharge any of the functions specified  in the Act has been placed before us.  No ,rule has been framed under  sub-s. (3) of s. 133A of the Act making the  Regional Transport  Authority  subordinate  to  the  State  Transport Commissioner.  The only material available to us is that the Commissioner  was  appointed  by  the  State  Government  as Chairman  of the Central Road Traffic Board.  Under the  Act and the rules framed thereunder, there are certain statutory duties  and functions allotted to the Central  Road  Traffic Board, but no separate powers are conferred on the  Chairman of  the Board apart from hi$ being a part of the Board.   It is, therefore, clear that under the Act and the rules framed thereunder  the  Regional  Transport  Officer  is  not  made subordinate to the State Transport Commissioner. But   what   is  contended  is  that  though   between   the Commissioner and the Regional Transport Officer, there is no statutory   subordination,  the  latter  was  made  by   the Government administratively subordinate to the Commissioner. There  is  no order of the Government  making  the  Regional Transport  Officer a subordinate to the Commissioner  placed before  us.  The only material is a notification  issued  by the  Government dated October 20,1955, on which reliance  is placed  to indicate that the Regional Transport  Officer  is subordinate  to the Commissioner.  But obviously it  has  no relevance  to the present enquiry, for the notification  was issued  on  a date subsequent to the date  of  the  impugned order.   If there was an earlier notification, the State  or the  appellant  would have produced it, but  from  its  non- production  it  may  be  assumed  that  there  was  no  such notification.   If that is excluded, the only two  remaining documents  are, (i) The Madras Financial Code giving a  list of  the heads of departments of the Madras State,  and  (ii) the  Half-Yearly  List of Gazetted Officers  in  the  Madras State   Government.    The  former   shows   the   Transport Commissioner  as one of the heads of departments.   It  does not  in itself show that the Regional Transport  Officer  is his subordinate.  The mere mention of the Regional Transport Officers in the list of Gazetted 787 Officers in the department is not decisive of the fact  that they are subordinate to the Transport Commissioner.  In this state  of  record,  it is not possible  to  hold  that  even administratively   the   Regional   Transport   Officer   is subordinate to the State Transport Commissioner. I  shall  assume  for  the purpose of  this  case  that  the

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Regional Transport officer is treated by the Government as a subordinate  Officer to the Commissioner.  The  question  in this case is whether such administrative treatment in  utter disregard  of the statutory provisions can confer  upon  the Regional Transport Officer a right to function under s.  44A of the Act. The foregoing provisions relevant to the present enquiry may be  summarised thus: The Act is a selfcontained one.   Under specific provisions it empowers the Government to constitute a   State  Transport  Authority,  the   Regional   Transport Authorities and a State Transport Commissioner.  Section 44A does  not  authorize the Government to  appoint  subordinate officers to the Commissioner, but only enables it to  confer statutory  powers on an officer subordinate to  the  Commis- sioner.   In exercise of the powers conferred under s.  133A of  the Act, the State Government created a  Motor  Vehicles Department and appointed in that Department a  Commissioner, Regional  Transport  officers  and others.   But  the  State Government  has  not  made any  rules  making  the  Regional Transport   officer  a  subordinate  to  the   Commissioner. Indeed,  the  rules made him the executive  officer  of  the Regional  Transport  Board indicating thereby that he  is  a subordinate  to the Board.  It is, therefore, manifest  that either under the Statute or under the rules made  thereunder the  Regional  Transport Officer is not subordinate  to  the Commissioner. Learned  Attorney-General contends that s. 133A of  the  Act only  confers a discretionary power on the State  Government to  make  rules  indicating the  authorities  to  which  the officers  appointed shall be subordinate and, therefore,  it is  not bound to do so.  Assuming that the word " may  "  in the  section  confers  a discretionary power  on  the  State Government, is it permissible to contend that the Government is entitled to do 788 administratively  what it is empowered to do by rules ?   If the Government decides not to exercise the powers  conferred under sub-s. (3) of s. 133A, it may withhold from doing  so; but it cannot bring about the same result  administratively, i.e.,  by  a  process other than by way of  rules.   If  the contention  were  accepted, it would be attributing  to  the legislature  an intention to make an unnecessary  Provision. If the State Government could act administratively in regard to  matters  covered  by sub-s. (3),  why  should  the  said subsection  be  made  at all’?  Either by  making  rules  or without  making rules, the Government can achieve  the  same object.    There  is  an  understandable  reason   for   the legislative preference to a statutory rule.  Statutory rules are  placed  before  Parliament  for  its  approval,   while administrative regulations are entirely in the discretion of the  executive government.  Statutory authorities under  the Act  are  empowered to exercise  powers  affecting  valuable rights  of citizens.  The power to issue permits and  modify the  conditions thereof affects large interests and  it  may well  be  that the legislature in insisting  upon  statutory rules  seeks  to exercise supervision to  prevent  abuse  of powers.  The only reasonable construction of s. 133A is that the State can create subordination of one officer to another by  only  statutory  rules  and  not  otherwise.   I  would, therefore,  hold  that  if the Government seeks  to  make  a particular officer of the Department subordinate to another, it  can only do so by making a statutory rule  under  sub-s. (3) of s. 133A of the Act. The  result  is that negatively there is no  statutory  rule making  the  Regional Transport Officer subordinate  to  the

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State Transport Commissioner, and positively there is a rule making  him subordinate to the Regional Transport  Authority (R.T.A.).  If  that  be so, I must hold  that  the  Regional Transport  officer  is  not  a  subordinate  to  the   State Transport  Commissioner within the meaning of s. 44A of  the Act. In the result the appeal fails and is dismissed with costs.                               Appeal dismissed. 789                       Order of Court. In view of the majority judgment of the Court, the appeal is allowed  with costs in this Court, and the case remanded  to the High Court for a re-hearing by a single Judge.  Costs in the High Court will abide the result.                               Appeal allowed.