05 March 1964
Supreme Court


Case number: Appeal (civil) 19 of 1964






DATE OF JUDGMENT: 05/03/1964


CITATION:  1964 AIR 1573            1964 SCR  (7)   1  CITATOR INFO :  RF         1966 SC1366  (1,4,6,7)  R          1969 SC  48  (10)  R          1970 SC1241  (6)  R          1972 SC2250  (14,15,16,19,20)  R          1974 SC1117  (4)  R          1974 SC2297  (5)  R          1977 SC 416  (3)

ACT: Motor Vehicles Act, 1939 (4 of 1939), s. 43A (as inserted by Madras Amending Act 20 of 1948) Madras G.O. No. 1298,  dated April  28,  1956-Government order prescribing the  award  of marks-If  direction to Regional Transport Authority  in  the discharge  of its quasi-judicial function-Section  43A-Scope of--if authorises only administrative directions.

HEADNOTE: The appellant is a bus operator in the State of Madras.   On an  invitation for applications for the grant of  two  stage carriage  permits he submitted his applications  along  with many  others.  The State Transport Authority considered  the merits of the application awarding marks in accordance  with the  principles  prescribed by Madras G.O. No.  1298,  dated April  28,  1956 issued under s. 43A of the  Motor  Vehicles Act,  1939 inserted by the Madras Amending Act 20  of  1948. The  Transport  Authority  on this  basis  granted  the  two permits  to the appellant.  Against this order a  number  of appeals  were filed by some of the  unsuccessful  applicants including  respondents Nos. 2 and 3 in the  present  appeal. The Appellate Tribunal re-allotted marks in accordance  with the  above G.O. and respondents 2 and 3 having  secured  the maximum  number of marks were granted the permits.   On  the rejection  of a petition under Art. 226 of the  Constitution and after appealing without success to a Division Bench  the appellant applied for a certificate to appeal to this  Court which  rejected.   The present appeal was filed  on  special leave granted by this Court. It  was  contended on behalf of the  appellant  before  this Court that since Madras G.O. No. 1298, dated April 28, 1956,



purports  to issue direction to the Transport  Authority  in the  discharge of its quasi-judicial functions it is  beyond the  powers  conferred by s. 43A of the Motor  Vehicles  Act which  authorises only the issue of directions to  the  said authority  in the discharge of its administrative  functions and therefore it is bad. Held, (i) Section 43A confers power on the State  Government to  issue  orders  and directions  to  the  State  Transport Authority only in relation to its administrative functions. M/s.  Raman and Raman v. The State of Madras [1959] 2 S.C.R. 227, relied on. (ii)It  is well settled that ss. 47, 48, 57, 60, 64 and  64A deal  with quasi-judicial functions and when  the  transport authorities  are dealing with applications for  permits  and evaluating  the  respective  claims  of  the  parties,   the transport   authorities   are   discharging   quasi-judicial functions and their orders are quasi-judicial orders subject to the jurisdiction of the High Court under Art. 226. L/P(D)1SCI-1 2 New Prakash Transport Co. Ltd. v. Suwarna Transport Co. Ltd. [1957]  S.C.R.,  98  M/s Raman and Raman Ltd.  v.  State  of Madras,  [1959]  2 S.C.R. 227, B. Abdulla Rowther  v.  State Transport Appellate Tribunal, Madras, A.I.R. 1959, S.C. 896, relied on. (iii)     In interpreting s. 43A it is legitimate to  assume that  the  legislature  intended to respect  the  basic  and elementary postulate of the, rule of law that in  exercising their   authority  and  discharging   their   quasi-judicial functions,  the tribunals constituted under the Act must  be left  absolutely free to deal with the matter  according  to their  best  judgement.  It is of the essence  of  fair  and objective administration of law that the decision of  judges or tribunals must be absolutely unfettered by any extraneous guidance  by  the executive or administrative  wing  of  the State. (iv) The  impugned  order is outside the purview of  s.  43A inasmuch  as  it purports to give directions in  respect  of matters   which  have  been  entrusted  to   the   tribunals constituted under the Act and which have to be dealt with by them in quasi-judicial manner. (v)  The decision of the appellate Tribunal is solely  based on  the provisions of the impugned order and since the  said order is invalid, the decision is also bad.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 19 of 1964. Appeal  by special leave from the judgment and  order  dated October  29, 1963, of the Madras High Court in  Writ  Appeal No. 214 of 1962. S.   Mohan Kumar amagalam, M. N. Rangachari, R. K. Garg,  M. K. Ramamurthi, for the appellant. R.   Ganapathy Iyer, for respondents Nos. 2 and 3. A.   Ranganadham Chetty and A. V. Rangam, for respondent No. 4. M.   C.  Setalvad, N. C. Krishna Iyengar and 0.  C.  Mathur, for Intervener. March 5, 1964.  The judgment of the Court was delivered by-  GAJENDRAGADKAR,  C.J.-The short but important point of  law which  has  been raised for our decision in this  appeal  by special  leave is whether G.O. No. 1298 issued by  the  Gov- ernment  of  Madras  on April 28, 1956 in  exercise  of  its powers  conferred by s. 43A of the Motor Vehicles Act,  1939



(Central  Act  IV  of 1939)  (hereinafter  called  the  Act) inserted  by the Madras Amending Act 20 of 1948,  is  valid. Mr.  Mohan  Kumaramangalam  who appears  for  the  appellant contends  that the impugned Government order is invalid  for the simple reason that it is outside the purview of s.  43A. The  impugned  order was issued as early as 1956  and  since then, its validity 3 has  never been impeached in judicial proceedings.   Litiga- tion  in regard to the grant of permits under  the  relevant provisions of the Act has figured prominently in the  Madras High  Court in the form of writ petitions invoking the  said High Court’s jurisdiction under Art. 226 of the Constitution and  several aspects of the impugned order have come  to  be examined.   The  echoes of such litigation  have  frequently been heard in this Court and this Court has had occasion  to deal  with the impugned order, its character, its scope  and its effect-, but on no occasion in the past, the validity of the order appears to have been questioned.  The  legislative and  judicial  background  of the order and  the  course  of judicial  decisions in regards to the points raised  in  the enforcement of this order would prima facie and at the first blush  suggest that the attack against the validity  of  the order may not be wellfounded and that would tend to make the initial  judicial  response  to  the  said  challenge   more hesitant  and  reluctant.  But Mr.  Kumaramangalam  contends that  s.  43A under which the order purports  to  have  been passed would clearly show that the said order is outside the purview  of the authority conferred on the State  Government and  is  therefore  invalid.  It is  obvious  that  if  this contention  is upheld, its impact on the  administration  of the  system  adopted  in the State of  Madras  for  granting permits under the Act would be very great and so though  the question  lies within a narrow compass, it needs to be  very carefully  examined.   The facts which lead to  the  present appeal conform to the usual pattern of the permit litigation in  which  the grant or refusal to grant a permit  is  chal- lenged  under the writ jurisdiction of the High Court  under Art. 226. The  appellant B. Rajagopala Naidu is a bus operator in  the State  of  Madras and he runs a number of buses  on  various routes.  On June 26, 1956, the State Transport Authority  by a  notification  invited applications for the grant  of  two stage  carriage permits on the route Madras to  Krishnagiri. The  buses on this route were to be run as express  service. The appellant and 117 bus operators including respondents  2 and   3   D.   Rajabahar   Mudaliar,   proprietor   of   Sri Sambandamoorthy  Bus  Service  and  K.  H.  Hanumantha  Rao, proprietor of Jeevajyoti Bus Service respectively, submitted applications  for  the two permits in question.   The  State Transport Authority considered the said applications on  the merits.   In  doing  so,  it proceeded  to  award  marks  in accordance  with the principles prescribed by  the  impugned order  and  came  to  the  conclusion  that  the   appellant satisfied the requirements enunciated by the State Transport Authority for running an efficient bus service on this  long route,  and so, it granted the two permits to the  appellant on May 8, 1958. L/P(D)1SCI-1(a) 4 Against  this  decision, 18 appeals were  preferred  by  the unsuccessful  applicants including respondents 2 and 3.  All these appeals were heard together by the State Transport Ap- pellate  Tribunal,  Madras in June 1959.   It  appears  that before the appeals were thus heard, the State Government had



superseded the principles enunciated in the order in so  far as  they related to the grant of stage carriage permits  and had issued another direction under s. 43A known as G.O. 2265 on  August 9, 1958.  Incidentally, it may be added  that  by this  order,  different  criteria had  been  prescribed  for selection  and a different marking system had been  devised. The  Appellate Tribunal considered the claims of  the  rival bus  operators  and allotted marks in  accordance  with  the principles  laid  down by the earlier order.  As  a  result, respondents  2  and 3 secured the highest  marks  and  their appeals  were allowed, the order under appeal was set  aside and two permits were granted to them.  This order was passed on July 4, 1959. The  appellant then invoked the jurisdiction of  the  Madras High  Court under Art. 226 of the Constitution by this  writ petition  No.  692 of 1959.  In his writ  petition  the  ap- pellant  challenged the validity of the order passed by  the Appellate Tribunal on several grounds.  One of them was that the  impugned order on which the decision of  the  Appellate Tribunal  was based, was invalid.  This plea along with  the other  contentions  raised by the appellant failed  and  the learned  Single Judge who heard his writ petition  dismissed the  petition,  on  October 18, 1962.   The  appellant  then challenged  the  correctness of this decision by  a  Letters Patent Appeal No. 214 of 1962 before a Division Bench of the said  High Court.  The Division Bench, however, agreed  with the view taken by the Single Judge and dismissed the Letters Patent  Appeal  preferred by the appellant.   The  appellant then  moved  the said High Court for leave,  but  failed  to secure it, and that brought him here with an application for special leave which was granted on November 14, 1963.  It is with this special leave that the appellant has brought  this appeal before us for final disposal. Before  dealing with the points raised by the appellant,  it is  necessary  to consider the background  of  the  impugned order, and that takes us to the decision of the Madras  High Court  in  Sri Rama Vilas Service Ltd. v. The  Road  Traffic Board,  Madras,  by  its Secretary(1).  In  that  case,  the appellant had challenged the validity of a Government  order No.  3898 which had been issued by the Madras Government  on December  9,  1946.   This order  purported  to  direct  the transport authorities to issue only temporary permits as the Government   intended   to  nationalise   motor   transport. Accordingly,  instruction  No.  2  in  the  said  order  had provided that when (1)  (1948) 1 M.L.J. 85. 5 applications  were  made for new routes or  new  timings  in existing routes, then small units should be preferred to old ones.   In  accordance  with  this  instruction,  when   the application for permit made by the appellant, Sri Rama Vilas Service  was rejected, the order stated that it so  rejected in  the interests of the public generally under s.  47(1)(a) of  the Act.  The appellant preferred ,-in’  appeal  against the  order  to  the  Central  Board  namely  the  Provincial Transport  Authority  which  had  been  constituted  by  the Government  under s. 44 of the Act.  His appeal  failed  and so,  he  moved  the Madras High Court under  s.  45  of  the Specific  Relief Act for an order directing the  respondent- the Road Traffic Board, Madras--to consider the  application of  the appellant in accordance with the provisions  of  the Act and the rules made thereunder for renewal of the  permit for  plying buses.  The High Court held that G. O. No.  3898 was in direct conflict with the proviso to s. 58 sub-s.  (2) of the Act, and so, was invalid.  This decision showed  that



there  was no authority or right in the State Government  to issue  instructions  such  as were  contained  in  the  said Government order.  In reaching this decision, the High Court emphasised the fact that the Central Transport Board and the Regional Transport Board were completely independent of  the Government  except that they must observe the  notifications made pursuant to s. 43 of the Act.  It was conceded that  if and  when the Government acted as an Appellate Tribunal,  it had  judicial functions to discharge.  But  these  functions did not include the power to give orders to any Board  which was  seized of an application for renewal of permits.   That is  how it was established by this decision that as the  Act stood,  the  State  Government had  no  authority  to  issue directions  as  to  how applications for  permits  or  their renewal  should be dealt with by the  Tribunals  constituted under the Act.  This judgment was pronounced on November 19, 1947. As a result of this judgment, the Madras Legislature amended the  Central Act by Act XX of 1948 which came into force  on December 19, 1948.  Amongst the amendments made by this  Act was  the insertion of s. 43A with which we are concerned  in the   present  appeal.   This  section  clothed  the   State Government  with  powers  to issue  certain  directions  and orders.   As we have already indicated, the point  which  we are,  considering  in  the present  appeal  is  whether  the impugned  order  falls within the purview of the  power  and authority conferred on the State Government by this section. We will read this section later when we address ourselves to the question of its construction. The  amendment of the Central Act led to the next  round  of controversy  between  the bus operators and the  State  Gov- ernment and that resulted in the decision of the Madras High 6 Court in C.S.S. Motor Service Tenkasi v. The State of Madras and  another(1).   In  that case, the  validity  of  several provisions of the Act including the provisions introduced by the  Madras  Amendment  Act were  challenged.   It  will  be recalled that at the time when this challenge was made,  the Constitution  had come into force and the  appellant  C.S.S. Motor  Service urged before the High Court that  under  Art. 19(1)(g) it had a fundamental right to ply motor vehicles on the  public pathways and the impugned provisions of the  Act invaded  its  aforesaid  fundamental  right  and  were   not justified  by  Art.  19(6).   The  High  Court   elaborately considered the first part of the contention and it took  the view, and we think rightly, that a citizen has a fundamental right to ply motor vehicles on the public pathways for  hire or otherwise and that if any statutory provision purports or has  the  effect of abridging such  fundamental  right,  its validity  would have to be judged under the relevant  clause of  Art.  19.  Proceeding to deal with the dispute  on  this basis,  the High Court examined the validity of the  several impugned  provisions of the Act.  In regard to s.  43A,  the High Court came to the conclusion that the said section  was valid  though  it  took the precaution of  adding  that  the orders  passed  thereunder  might be open  to  challenge  as unconstitutional.   It is, however, necessary  to  emphasise that  the main reason which weighed with the High  Court  in upholding  the  validity of this section was that  the  High Court  was satisfied that the said section was "intended  to clothe the Government with authority to issue directions  of an  administrative character." Thus, s. 43A was held  to  be valid in this case and the correctness of this conclusion is not disputed before us.  In other words, we are dealing with the  appellant’s  challenge  against  the  validity  of  the



impugned  order  on the basis that s. 43A itself  is  valid. This judgment was pronounced on April 25, 1952. Some years after this judgment was pronounced, the  impugned Government  order was issued on April 28, 1956.  This  order purported  to  issue  instructions  or  directions  for  the guidance  of  the Tribunals constituted under the  Act.   In fact, it refers to the judgment of the Madras High Court  in the case of C.S.S. Motor Service.  It would appear that  the Madras Government wanted to give effect to the said decision by  issuing  appropriate  directions  under  its   authority derived  from  s.  43A  which was held  to  be  valid.   The impugned order deals with five topics.  The first topic  has relation  to the instructions which had to be borne in  mind whilst  screening the applicants who ask for permits.   This part  of  the  order provides that  the  applicants  may  be screened  and disqualified on one or more of the  principles enunciated  in cls.  1 to 4 in that part.  The  second  part deals with the system of assigning marks to (1)  A.L.R. (1953) Mad. 304. 7 the  several claimants, under four columns.  In laying  down these principles, the impugned order intended to secure  precision in  the disposal of claims for permits and to  enable  quick consideration of the merits of such claimants.  This part of the  order, however, made it clear that in cases  where  the system  of  marking worked unfairly the  Regional  Transport Authority  may ignore the marks obtained for reasons  to  be stated.  It is this’ part of the order which has  introduced the  marking  system which has been the special  feature  of adjudication  of claims for permits in the State of  Madras. These  two  parts are described as "A."  in  the  Government order.   Part  3 deals with the variation, or  extension  of routes  granted  under the permits.  Part 4 deals  with  the revision  of timings and Part 5 has reference to  suspension or cancellation of permits.  That in brief is the nature  of the directions issued by the impugned order. After  this order was issued and the  Tribunals  constituted under the Act began to deal with applications for permits in accordance  with  the  principles  prescribed  by  it,   the decisions  ,of  the  said Tribunals came  to  be  frequently challenged  before the Madras High Court and these  disputes have,  often  been brought before this court  as  well.   In these  cases,  the  character of the  order  passed  by  the Tribunal was examined, the nature of the instructions issued by  the impugned order was considered and the rights of  the parties  aggrieved  by the quasi-judicial decisions  of  the tribunals also fell for discussion and decision.  A question which  was often raised was whether it was open to  a  party aggrieved  by the decision of the Tribunal to  contend  that the  said decision was based either on a misconstruction  of the  impugned  order  or in contravention  of  it,  and  the consensus   of  judicial  opinion  on  this  part   of   the controversy  appears to be that the proceedings  before  the Tribunals  constituted  under  the  Act  are   quasijudicial proceedings  and as such liable to be corrected  under  Art. 226 of the Constitution.  It also appears to be well  estab- lished  that the impugned order is not a statutory rule  and has  therefore no force of law.  It is an administrative  or executive  direction and it is binding on the tribunals;  it does not, however, confer any right on the citizen and  that means,  that a citizen cannot be allowed to contend  that  a misconstruction  of  the order or its contravention  by  any decision of the Tribunal functioning under the Act should be corrected under Art. 226.



In  M/s  Raman  and Raman Ltd. v. The State  of  Madras  and others(1),  this Court by a majority decision held  that  s. 43A of the Act as amended by the Madras Amendment Act,  1948 must  be given a restricted meaning and the jurisdiction  it conferred  on  the  State Government  to  issue  orders  and directions must be confined to administrative functions.  An order or (1)  [1959] 2 S.C.R. 227. 8 direction  made thereunder by the State Government was  con- sequently  denied  the status of law  regulating  rights  of parties. and was treated as partaking of the character of an administrative  order.  Similarly, in R. Abdulla Rowther  v. The State Transport Appellete Tribunal, Madras and others(1) this  Court held by a majority decision that the orders  and directions  issued  under s. 43A were  merely  executive  or administrative  in  character  and  their  breach,  even  if patent, would not justify the issue of a writ of certiorari. It  was also observed that though the orders were  executive and  did  not  amount to statutory rules,  they  were  rules binding on the transport authorities for whose guidance they have  been issued, but that did not confer any right on  the citizen  and  so a plea that a contravention of  the  orders should be corrected by the issue ,of an appropriate writ was rejected.  Such contravention, it was held, might expose the Tribunal  to the risk of disciplinary or  other  appropriate action,  but  cannot entitle a citizen to make  a  complaint under  Art. 226.  It is necessary to emphasise that in  both these  cases no argument was urged that the  impugned  order was  itself  invalid  and should have been  ignored  by  the Tribunals  exercising  quasi-judicial  authority  under  the relevant  provisions  of the Act.  The Court  was  no  doubt called upon to consider the character of the impugned  order and  some of the reasons given in support of the  conclusion that the impugned order is administrative or executive  seem to suggest that the said order would, prima facie, be incon- sistent  with  the  provisions of s. 43A  which  received  a narrow   and   limited   construction   from   the    court. Nevertheless,  since  the point about the  validity  of  the impugned order was not raised before the court, this  aspect of  the  question was not examined and  the  discussion  and decision proceeded on the basis that the impugned order  was valid.  Now that the question has been raised before us,  it has become necessary to examine the validity of the impugned order. Before  proceeding  to examine the scope and effect  of  the provisions  of s. 43A, it is necessary to bear in  mind  two general considerations.  The first broad consideration which is relevant has relation to the scheme of the Act in general and  the scheme of Ch.  IV in particular.  The Act  consists of 10 chapters and deals mainly with administrative problems in  relation  to  motor vehicles.   Chapter  11  deals  with licensing  of drivers of motor vehicles.  Chapter IIA  deals with licensing of conductors of State carriages and  Chapter III  with  registration of motor vehicles.   Chapter  IV  is concerned with the control of transport vehicles and in this chapter  are  included  the  relevant  provisions  for   the applications  for  grant of permits,  the  consideration  of those  applications  and other allied topics.   Chapter  IVA includes the provisions relating to (1)  A.I.R. (1959) S.C. 896. 9 State Transport Undertakings.  Chapter V addresses itself to the  construction, equipment and maintenance of motor  vehi- cles, Chapter VI deals with the control of traffic, Chapter’



VII  has reference to motor vehicles temporarily leaving  or visiting India, Chapter VIII with the question of  insurance of  motor  vehicles against third party  risks,  Chapter  IX prescribes  offences,  penalties and procedures to  try  the offences -and Chapter X contains miscellaneous provisions. This  scheme  shows that the hierarchy of  transport  autho- rities contemplated by the relevant provisions of the Act is clothed   both   with  administrative   and   quasi-judicial functions  and powers.  It is well settled that ss. 47,  48, 57,  60,  64  and 64A deal with  quasi-judicial  powers  and functions.   In other words, when applications are made  for permits  under -the relevant provisions of the Act and  they are considered ,on the merits, particularly in the light  of the evaluation of the claims of the respective parties,  the transport  authorities are exercising quasi-judicial  powers and are discharging quasijudicial functions, and so,  orders passed   by  them  in  exercise  of  those  powers  and   in discharging  those functions are quasijudicial orders  which are subject to the jurisdiction of the High Court under Art. 226,  vide  New Prakash Transport Co. Ltd.  v.  New  Suwarna Transport  Co. Ltd.(1) and M/s Raman and Raman Ltd.  v.  The State of Madras and others(3) and R. Abdulla Rowther v.  The State  Transport Appellate Tribunal Madras and others(3)  so that when we examine the question about the validity of  the impugned  order, we cannot lose sight of the fact  that  the impugned  order is concerned with matters which fall  to  be determined  by  the  appropriate  transport  authorities  in exercise of their quasi-judicial powers and in discharge  of their quasi-judicial functions. The  other broad consideration relevant in dealing with  the present  controversy is that there are three sets of  provi- sions  under the Act which confer legislative, judicial  and administrative powers respectively on the State  Government. Section  67 which confers on the State Government  power  to make rules as to stage carriages and contract carriages  and s.  68 which confers power on the State Government  to  make rules for the purposes of Ch.  IV are obviously  legislative powers, and in exercise of these powers, when the rules  are framed, they become statutory rules which have the force  of law.  Naturally, the exercise of these legislative powers is controlled  by the safeguard provided by s. 133 of the  Act. This latter section requires that when power is exercised by the  State  Government to make rules, it is subject  to  the condition that the rules must be previously published before they are (1)  [1957]  S.C.R.  98  p. 118. [1959]  2  S.C.R.  p.  227. A.I.R. (1959) S.C. 896. 10 made.   That is the effect of s. 133(i).  Sub-cl. (2) of  s. 133  provides  that all rules made under this Act  shall  be published  in the Official Gazette after they are  made  and shall, unless some later date, is appointed, come into force on the date of such publication.  Clause 3 is important.  It provides that all rules made under the Act shall be laid for not   less  than  fourteen  days  before   the   appropriate Legislature  as  soon as possible after they are  made,  and shall  be subject to such modifications as  the  appropriate Legislature may make during the session in which they are so laid.  So that if statutory rules are made by the Government in exercise of legislative powers conferred on it by ss.  67 and  68, they are subject to the control of the  appropriate legislature  which can make changes or modifications in  the said rules if it is thought necessary or expedient to do so. Publication before the rules are made and publication  after they  are  made also afford another statutory  safeguard  in



that  behalf.  That is the nature of the  legislative  power conferred on the State Government. Section  64A confers judicial power on the  State  Transport Authority,  because the said authority is  given  revisional jurisdiction to deal with orders therein specified,  subject to  the  limitations and conditions prescribed  by  the  two provisos  to  the said section.. This is a  clear  provision conferring judicial power on the State Transport Authority. Along  with the legislative and judicial powers  which  have thus been conferred, there is the administrative power  con- ferred on the State Government by s. 43A.  Section 43A reads thus: ,,The State Government may 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 a Regional Transport Authority; and  such Transport Authority shall give effect to all  such orders and directions". It is the construction of this section which is the basis of the challenge to, the validity of the impugned rules in  the present  appeal.   It may be conceded that  there  are  some words in the section which are against the construction  for which Mr. Kumaramangalam contends.  The words "in respect of any matter relating to road transport" are undoubtedly  wide enough to take in not merely administrative matters but also matters  which  form  the area of  the  exercise  of  quasi- judicial  authority by the Tribunals constituted  under  the Act.  Prima facie, there are no words of limitation in  this clause and it would, therefore, be possible to take the view that  these  are  matters  which  are  scrutinised  by   the appropriate  authorities in exercising their  quasi-judicial jurisdiction.  Similarly, the State Transport Authority  and the Regional Transport 11 Authority  to  which reference is made in this  section  are clothed  not  only with administrative power but  also  with quasijudicial  jurisdiction  so that reference  to  the  two authorities  and  reference to any matter relating  to  road transport would indicate that both administrative and quasi- judicial matters come within the sweep of s. 43A. But there are several other considerations which support Mr. Kumaramangalam’s construction.  The first is the setting and the  context of the section.  As we have already seen,  this section  has been introduced by the Legislature in  response to  the  decision of the Madras High Court in  C.S.S.  Motor Service  case(1)  and that would indicate  that  the  Madras Legislature intended to confer on the State Government power to  issue administrative orders or directions of  a  general character.  Besides, the two preceding sections s. 42 and s. 43  and  s. 44 which follows support the argument  that  the field covered by s. 43A like that covered by ss. 42, 43  and 44 is administrative and does not include the area which  is the   subjectmatter  of  the  exercise   of   quasi-judicial authority by the relevant Tribunals. Then  again,  the use of the words ’orders  and  directions’ would not be appropriate in regard to matters which fall  to be  considered  by  authorities  exercising   quasi-judicial powers.   These  words  would be appropriate  if  they  have reference to executive matters. And  lastly,  the  provision  that  the  relevant  transport authority  shall  give effect to all orders  and  directions issued  under s. 43A would be clearly inappropriate  if  the instructions issued under the said section are meant for the guidance  of  quasi-judicial bodies.  If  the  direction  is issued  by  the appropriate Government in  exercise  of  its



powers under s. 43A and it is intended for the guidance of a tribunal  discharging  its quasi-judicial functions,  it  is hardly necessary to say that the authority shall give effect to such directions.  Section 43A being valid, if the  orders and  directions of a general character having the  force  of law can be issued within the scope of the said section, then such orders or directions would by themselves be binding  on the transport authorities for whose guidance they are  made; and  it  would be superfluous to make a  specific  provision that they are so binding.  On the other hand, if the  orders and  directions are in the nature of  administrative  orders and  directions,  they do not have the  force  of  statutory rules  and cannot partake of the character of provisions  of law,  and so, it may not be inappropriate to that  the  said orders  and directions shall be followed by the  appropriate tribunals.   Therefore,  it seems to us that on a  fair  and Leasonable construction of s. 43A, it ought to be held  that the said section authorises the State Government -.R. [1931] Mad. 304 12 to  issue orders and directions of a general character  only -tin  respect  of administrative matters which fall  to  be, dealt  with  by the State Transport  Authority  or  Regional Transport Authority under the relevant provisions of the Act in their administrative capacity. In  reaching  this conclusion, we have  been  influenced  by certain  other  considerations which are both  relevant  and material.   In  interpreting s. 43A, we think, it  would  be legitimate  to  assume  that  the  legislature  intended  to respect  the basic and elementary postulate of the  rule  of law,  that in exercising their authority and in  discharging their  quasi-judicial  function, the  tribunals  constituted under the Act must be left absolutely free to deal with  the matter  according  to  their best judgment.  It  is  of  the essence of fair and objective administration of law that the decision  of  the Judge or the Tribunal must  be  absolutely unfettered  by any extraneous guidance by the  executive  or administrative  wing  of  the State.   If  the  exercise  of discretion  conferred on a quasi-judicial tribunal  is  con- trolled  by any such direction, that forges fetters on  the- exercise  of  quasi-judicial authority and the  presence  of such  fetters  would  make the exercise  of  such  authority completely  inconsistent  with the well-accepted  notion  of judicial  process.   It is true that law  can  regulate  the exercise  of judicial powers.  It may indicate  by  specific provisions  on what matters the tribunals constituted by  it should  adjudicate.  It may by specific provisions lay  down the principles which have to be followed by the Tribunals in dealing   with  the  said  matters.   The.  scope   of   the jurisdiction  of  the Tribunals constituted by  statute  can well be regulated by the statute and principles for guidance of  the  said tribunals may also be  prescribed  subject  of course  to the inevitable requirement that these  provisions do  not contravene the fundamental rights guaranteed by  the Constitution.   But what law and the provisions of  law  may legitimately  do cannot be permitted to be done by  adminis- trative  or  executive  orders.  This position  is  so  well established  that we are reluctant to hold that in  enacting s.  43A the Madras Legislature intended to confer  power  on the State Government to invade the domain of the exercise of judicial power.  In fact, if such had been the intention  of the  Madras Legislature and had been the true effect of  the provisions  of  s.  43A, s. 43A itself would  amount  to  an unreasonable contravention of fundamental rights of citizens and may have to be struck down as unconstitutional.  That is



why the Madras High Court in dealing with the validity of s. 43A had expressly observed that what s. 43A purported to  do was  to  clothe  the  Government  with  authority  to  issue directions of an administrative character and nothing  more. It  is somewhat unfortunate that though  judicial  decisions have  always emphasised this aspect of the matter,  occasion did not arise so long 13 to  consider the validity of the Government order  which  on the  construction suggested by the respondent would  clearly invade the domain of quasi-judicial administration. There is another consideration which is also important.   If s.  43A authorises the State Government to issue  directions or  orders in that wide sense, s. 68 would become  redundant and  safeguards so elaborately provided by s. 133 while  the State Government purports to exercise its authority under s. 68,  would be meaningless.  If orders and directions can  be issued by the State Government which are not distinguishable from statutory rules, it is difficult to see why s. 68 would have  dealt  with  that topic  separately  and  should  have provided  safeguards controlling the exercise of that  power by s. 133. It  is likewise significant that the directions  and  orders issued under s. 43A are not required to be published nor are they required to be communicated to the parties whose claims are  affected  by them.  Proceedings  before  the  Tribunals which  deal  with the applications for permits  are  in  the nature of quasijudicial proceedings and it would, indeed, be very  strange  if  the Tribunals are required  to  act  upon executive  orders or directions issued under s. 43A  without conferring on the citizens a right to know what those orders are  and to see that they are properly enforced.   The  very fact that these orders and directions have been consistently considered  by  judicial  decisions  as  administrative   or executive  orders  which  do not confer  any  right  on  the citizens  emphatically  brings out the  true  position  that these  orders  and directions are not  statutory  rules  and cannot therefore seek to fetter the exercise of  quasi-judi- cial  powers  conferred  on the Tribunals  which  deal  with applications for permits and other cognate matters. It  is, however, urged that the principles laid down in  the impugned order are sound principles and no challenge can  be made  to the validity of the order when it is conceded  that the  order  enunciates very healthy  and  sound  principles. This  order,  it  is argued, can  be  considered  as  expert opinion  the  assistance of which is afforded by  the  State Government  to  ,he Tribunals dealing with the  question  of granting  permits.  We are not impressed by  this  argument. It  is  not the function of the executive to  assist  quasi- judicial Tribunals by issuing directions in the exercise  of its  powers conferred under s. 43A.  Besides, if s.  43A  is valid  and an order which is issued under it does  not  fall outside  its  purview,  it  would  be  open  to  the   State Government to issue a direction and require the Tribunal  to follow that direction unquestionably, in every case.  It  is true that in regard to the marking system evolved by the im- pugned  rule, liberty is left to the Tribunal not  to  adopt that system for reasons to be recorded by it.  This  liberty in practice 14 may  not mean much; but even theoretically, if the  impugned order  is  valid, nothing can prevent the  State  Government from issuing another order requiring that the marking system prescribed by it shall always be followed.  We have  already seen that s. 43A itself provides that effect shall be  given



to  the orders issued under it, and so, if an  order  issued under  s.  43A  itself were to prescribe that  it  shall  be followed, it will have to be followed by the Tribunal and no exception can be made in that behalf.  Therefore, we  cannot accept  the  argument  strongly pressed  before  us  by  Mr. Ganapathy  Iyer  on  behalf of respondent  No.  1  that  the validity  of  the order cannot be challenged on  the  ground that  the principles laid down by it are sound and  healthy. We have, therefore, come to the conclusion that the impugned order  is  outside  the purview of s.  43A  inasmuch  as  it purports to give directions in respect of matters which have been  entrusted to the Tribunals constituted under  the  Act and  which  have to be dealt with by these  Tribunals  in  a quasi-judicial manner.  We cannot overlook the fact that the validity  of  the  Act  particularly  in  reference  to  its provisions prescribing the grant and refusal of permits, has been sustained substantially because this important function has  been left to the decision of the Tribunals  constituted by  the  Act and these Tribunals are  required  to  function fairly and objectively with a view to exercise their  powers quasijudicially,  and  so, any attempt to  trespass  on  the jurisdiction  of these Tribunals must be held to be  outside the purview of s. 43A. We  are  conscious of the fact that the impugned  order  was issued  after and presumably in response to the decision  of Madras  High  Court in the case of C.S.S.  Motor  Service(1) though  it  Would  appear  that  what  the  High  Court  had suggested was presumably the making of the rules under s. 68 of the Act.  It cannot also be disputed that the main object of  the State Government in issuing this order was to  avoid vagaries,  and introduce an element of certainty and  objec- tivity,  in the decision of rival claims made by  applicants in  respect of their applications for permits.  It may  have been  thought by the State Government that if the  Tribunals are  allowed  to  exercise  their  discretion  without   any guidance, it may lead to inconsistent decisions in different areas  and  that may create dissatisfaction  in  the  public mind.   It does appear, however, that in some  other  States the  problem of granting permits has been  resolved  without recourse to the marking 15 system.   But  apart from that, even if it is  assumed  that the,  marking  system,  if properly applied,  may  make  the decisions in regard to the grant of permits more  objective, fair  and consistent, we do not see how  that  consideration can  assist the decision of the problem raised before us  If the  State  Government thinks that the application  of  some kind of marking system is essential for a fair administration of the Act, it may  adopt such course as may be permissible under the  law. Section  47(1)(a) requires inter alia that the interests  of the  public  generally  have  to be borne  in  mind  by  the Regional Transport Authority in considering applications for stage  carriage permits.  The said section refers  to  other matters which have, to be borne in mind.  It is  unnecessary to  indicate them for our present purpose.  The  Legislature may  amend  s. 47 by  indicating  additional  considerations which  the Transport Authority has to bear in mind;  or  the Legislature  may  amend  s. 47 by conferring  on  the  State Government expressly and specifically a power to make  rules in  that behalf or the State Government may proceed to  make rules  under  s. 68 without amending s. 47.  These  are  all possible steps which may be taken if it is thought that some directions  in  the  nature of the provisions  made  by  the impugned  order must be issued.  That, however, is a  matter



with  which  we are not concerned and on which  we  wish  to express no opinion.  As this court has often emphasised,  in constitutional  matters it is of utmost importance that  the court should not make any obiter observations on points, not directly  raised before it for its decision.  Therefore,  in indicating the possible alternatives which may be adopted if the  State Government thinks that the marking  system  helps the  administration  of the Act, we should not be  taken  to have  expressed  any opinion on the validity of any  of  the courses specified. That leaves only one point to be considered.  Mr.  Ganapathy Iyer urged that even though the impugned order may be valid, that  is  no reason why the order passed  by  the  Appellate Tribunal  which has been confirmed by the High Court in  the present writ proceedings should be reversed.  He argues that what  the  Appellate Tribunal has done, is to act  upon  the principles   which  are  sound  and  the  fact  that   these principles  have been enunciated by an invalid order  should not  nullify the decision of the Appellate Tribunal  itself. Thus  presented, the argument is no doubt plausible;  but  a closer  examination  of  the argument  reveals  the  fallacy under-lying  it.  If the Appellate Transport  Authority  had considered these, matters on its own without the  compulsive force  of  the impugned order, it would  have  been  another matter-, but the order pronounced by the Appellate Authority clearly  and unambiguously indicates that it held and  in  a sense  rightly,  that it was bound to  follow  the  impugned order  unless  in the exercise of its option it  decided  to depart  from it and was prepared to record its  reasons  for adopting  that  course.   It would, We  think,  be  idle  to suggest  that  any Transport Authority  functioning  in  the State would normally refuse to comply with the order  issued by the State Government itself.  Therefore, 16 we  have no hesitation in holding that the decision  of  the Appellate Tribunal is based solely on the provisions of  the impugned  order  and since the said order  is  invalid,  the decision itself must be corrected by the issue of a writ  of certiorari. In  the  result, we allow the appeal, set  aside  the  order passed  by the High Court in Writ Petition No. 692  of  1959 and  direct that the said Writ Petition be  allowed.   There would  be  no order as to costs throughout.   In  accordance with  this  decision a writ of certiorari  shall  be  issued setting aside the order passed by the Appellate Tribunal and remanding the matter to the Regional Transport Authority for disposal in accordance with law. Appeal allowed 17