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PETITIONER: M.NAINA MOHAMMED

       Vs.

RESPONDENT: K. A. NATARAJAN & OTHERS

DATE OF JUDGMENT23/07/1975

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN FAZALALI, SYED MURTAZA

CITATION:  1975 AIR 1867            1976 SCR  (1) 102  1975 SCC  (2) 352  CITATOR INFO :  C          1991 SC 225  (8)

ACT:      Constitution of  India, Art.  226- Jurisdiction of High Court-Scope of.

HEADNOTE:      The Regional  Transport Authority  granted a  permit to the appellant  but this  decision was  reversed by the State Transport Appellate  Tribunal. In  a petition under Art. 226 of the  Constitution a single Judge of the High Court, on an examination of  the merits of the case, reversed the view of the  Stale   Transport  Appellate  Tribunal.  On  appeal,  a Division Bench  of the  High Court  held that  a full  scale reappraisal of  the points was in excess of the jurisdiction of the  single Judge  under Art.  226.  the  Division  Bench restored  the   order  of   the  State  Transport  Appellate Tribunal.      On appeal  to this  Court, remitting  the, case  to the State Transport Appellate Tribunal, ^      HELD: The  boundaries of  the High Court’s jurisdiction under Art.  226 of the Constitution are clearly and strongly built and cannot be breached without risking jurisprudential confusion. The  power of  the High  Court under  Art. 226 be supervisory in nature. [103E]      Sri Rama  Vilas Service  (P) Ltd. v. C. Chandrasekharan [1964] 5 S.C.R. 869. referred to.      The single  judge had  undertaken an  evaluation of the merits on  his own  which was  beyond his  jurisdiction. The Division Bench  disposed of  the case  in a  short paragraph which hardly  did justice to the order appealed against. But while reversing the order appealed against valid reasons had to be  adduced. While  the Division  Bench was  justified in observing that,  sitting on  the writ  side, judicial review should have  been more  restricted than while sitting on the appellate side,  its own  judgment was vulnerable because of the plain finding that what was not pertinent was taken into consideration by the Appellate Tribunal. [103G, H; 104A-B]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  98 of 1975. From  the Judgment  and order  dated 25-7-1974  of the Madras High Court of Judicature at Madras in Writ Appeal No. 519 of 1968.      K.  S.  Ramamurthi  and  A.  T.  M.  Sampath,  for  the appellant.      M. K.  Ramamurthi and  Vineet Kumar, for respondent no. 1.      The Judgment of the Court was delivered by      KRISHNA IYER,  J.-A spiral  of reversals is the fate of this litigative  battle between  the appellant and the first respondent over  a permit  to ply a bus on the route between Madurai and  Paramakkudi,   Tamil Nadu.  While its admission into this Court was by special leave, the first round of the contest  was  fought  before  the  RTA  (Regional  Transport Authority) which,  on an  evaluation of  the relative merits and demerits  of the  rivals,  granted  the  permit  to  the present appellant, but this victory was short-lived because, at the  second stage  of the  legal bout,  the  STAT  (State Transport Appellate Tribunal) held that the 103 respondent  before   us  had   better  claims.  The  worsted appellant, invoked  the writ  jurisdiction of the High Court under Art.  226 and  the learned Single Judge, who heard the petition, re-judged  the relevance and weight of the points, pro and  con, and  as a result of this adjudicatory exercise of facts,  demolished the  order of  the STAT.  The  learned Judge disagreed  with the  conclusion of the STAT instead of sending the  case back for a fresh look at the merits of the matter, set  aside the  permit granted to the respondent and affirmed the  award in  favour of  the appellant. Thereupon, the respondent  moved a  Division Bench  of that Court which felt that  a full-scale  re-appraisal of  the points for and against such  claimant was  in excess of the jurisdiction of the Single  Judge under  Art. 226,  although it noticed that certain factors  not relevant  to the  adjudication had been taken into  consideration by  the STATE.  Consequently,  the order of  the learned  Judge was set aside, the result being that the  respondent’s permit  was restored.  ’the appellant urged that  the decision  of the  Division Bench of the High Court was  utterly wrong  and somewhat casual, while that of the learned Single Judge was careful, elaborate and correct. Of course, this view of the matter was hotly controverted by counsel for  the 1st respondent but, after having heard both Shri K.  S. Ramamurthy,  for the  appellant, and  Shri M. K. Ramamurthy. for  the respondent,  we are  satisfied that the reluctant course of remitting the whole case to the STAT for a de  novo disposal  is called for as a matter of law and in the interests of justice      The boundaries  of the  High Court’s jurisdiction under Art. 226  are clearly  and  strongly  built  and  cannot  be breached without  risking  jurisprudential  confusion  (Shri Rama Vilas  Service (P)  Ltd. v,  C. Chandrasekharan(1). The power is  supervisory in nature, although the Judges at both the tiers,  in the  instant case,  have unwittingly  slipped into the  subtle, but  fatal, error  of exercising a kind of appellate review.      Shri M. K. Ramamurthy, for the respondent, was right in pointing out  that the  learned Single  Judge went  into the factum and  weight of  the claims  which could be put in the scales in  choosing the better of the two applicants for the permit. However,  the Court  rightly pointed  out that  some

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relevant factors  had been ignored by the STAT (for example. that the first respondent’s history sheet was not clean) and included  in   the  judicial   verdict  factors  which  were extraneous, such as ‘that the bus of the petitioner did not, in fact, ply from 2-9-65 to 4-12-65, this being attributable to  non-payment   of  surcharge   rather  than   operational inefficiency.  A  reading  of  the  learned  Single  Judge’s judgment leaves  us in  no doubt  that he  had undertaken an evaluation of  the merits on his own. This, undoubtedly, was beyond the  jurisdiction  of  the  High  Court.  Nor  is  it possible to  support the direction that if there were errors of law  vitiating the  STAT’s finding,  the case need not to back for fresh consideration but could be finally decided by the High Court itself.      In Writ  Appeal, the leaned Chief Justice, speaking for the Division  Bench of  the High Court, disposed of the case in a  short paragraph  which hardly did justice to the order appealed against. May be that 104 order was  wrong and  unsustainable, but  while reversing it valid reasons   had  to be  adduced. All that we find in the appellate judgment  is a  partial admission  that extraneous considerations were  inputs of  the order  of the STAT and a brief disposal  of the whole matter in a single sentence, as it were-"Even  so, there  is nothing  in the  order  of  the Tribunal to  support  it."  While  the  Division  Bench  was perhaps justified  in. Observing  that while  sitting on the writ side,  judicial review should have been more restricted that while  sitting on  the appellate side, its own judgment was vulnerable  because of  the plain  finding that what was not pertinent  was taken into consideration by the STAT. For instance, The  learned Chief  Justice observed:  ’It  is  no doubt true  that the  non-performance of  service after  the grant was  made, cannot  go into  the  computation  and  the reference  relating  to  night-halt  might  will  have  been avoided  in   its  discussion.’   ’The  non  performance  of service’, which  is slightly  obscure, but we read it in the context as  meaning the  failure to ply the bus on the route is question  subsequent to  the  grant  of  the  permit.  We express no  opinion on  the soundness of the observation but it is  clear that  the Division  Bench  itself  has  plainly accepted the  position that  what was  not, according to it, relevant had  gone into  the reckoning when the STAT awarded the permit  to the  appellant. In  this view,  this judgment cannot also be sustained. 1      The fair  course would,  therefore, be to set aside the judgment under  appeal and  send the  whole case back to the STAT to  hear the  case afresh,  consider  relevant  factors bearing upon ’public interest’ as highlighted in s.47 of the Motor Vehicles  Act and  dispose of  the appeal before it in accordance with  law, guided  by the decisions of this Court and untrammeled  by any  observations  made  either  by  the Single Judge or by the Division Bench.      Currently, the  respondent is  plying his  bus  on  the route and we direct that the status quo be maintained and he will continue  to operate  on the  route until the appeal is disposed of  by the  STAT. Of  course, the  RTA  passed  its orders as  early as  1966 November  and is  it  thinks  that public interest  demands the need for an extra bus to ply on the route  to cope  with the traffic, it will be open to the RTA to  grant a  permit, pending  disposal of the appeal, to the present appellant.      The fluctuating  fortunes of  the  combatants  for  the permit have  been such that it is appropriate to direct both parties to bear their costs throughout.

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P.B.R.                                        Case remanded. 105