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PETITIONER: SHARIF AHMED & ORS.

       Vs.

RESPONDENT: REGIONAL TRANSPORT AUTHORITY, MEERUT & ORS.

DATE OF JUDGMENT31/10/1977

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. GOSWAMI, P.K. DESAI, D.A.

CITATION:  1978 AIR   47            1978 SCR  (1) 749  1977 SCC  (4) 551  CITATOR INFO :  F          1980 SC 258  (10)  E          1980 SC 962  (6,21,23,34,44,67,103,105,114)  F          1983 SC  67  (5)  RF         1992 SC 604  (97)

ACT: Motor  Vehicles (U.P. Amendment) Act, 1972-Grant  of  stage- carriage permits by Appellate Tribunal-Retrospective  change in law before actual issuance of permits, whether  nullifies the  grant-Appeal lies only against grant, and not  issuance of permits.

HEADNOTE: In  1972, purporting to do away with the limit on the  grant of stage-carriage permits, imposed by s. 47(c) of the  Motor Vehicles  Act,  1939, the U. P. Government  promulgated  the U.P.  Motor  Vehicles Amendment Ordinance (No.  9  of  1972) replaced  by the Motor Vehicles (U.P. Amendment) Act,  1972. Under  s.  43-A(2) of the amended Act the  State  Government issued  a notification dated March 30, 1972,  directing  the Transport Authorities to grant stage carriage permits to all eligible  applicants.   The constitutional validity  of  the amended  law and the notification was upheld by the  Supreme Court  in  Hans Raj Kehar & Ors.  V. State of  U.P.  &  Ors. [1975]  2 SCR 916.  The State transport Appellate  Tribunal, thereafter,  allowed  fifty  pending  appeals  and   granted permits  to ill the appellants.  Pursuant to  the  Appellate Tribunal’s order of grant, the Regional Transport  Authority was to issue the grantees permits, on the fulfilment of cer- tain  conditions within a given time.  The  conditions  were duly  fulfilled  but the actual issue of  permits  was  kept pending   due  to  the  Appellate  Tribunal’s  order   being challenged  through a writ petition in the High Court.   The petition   was   dismissed,  but  meanwhile  the   law   was retrospectively amended. A question arose before this Court whether the retrospective change in law had nullified the Appellate Tribunal’s order? Allowing the appeal the Court. HELD  :  (1)  The applications for  grant  of  permits  were finally  disposed of, and permits were granted by the  order of the Appellate Tribunal, what remained pending was a  mere

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ministerial  act of issuing the permits, to be performed  by the  Regional Transport Authority or, its delegate,  on  the applicants’  complying with the terms of the  order,  within the  time granted by the Appellate Tribunal.  The  order  of the  Tribunal, when made, was legal and  with  jurisdiction, The  retrospective  change  in law had  not  the  effect  of nullifying the order. [766 G-H] The  Commissioner of Income-tax, Bihar & Orissa v.  Maharaja Pratap   Singh  Bahadur  of  Gidhaur  [1961]  2   SCR   760, distinguished. Obiter dictum : Retrospective  change  in law cannot  justify  allowing  the wrong  to continue.  The injustice done must  be  rectified. The issuance of a writ of mandamus would not have the effect of   directing  the  Regional  Transport  Authority  to   do something contrary to the present law, but of merely  asking it  to obey the valid order of the Appellate Tribunal  which has not been rendered void on any ground Whatsoever. [768 E- F] ’Judicial Review of Administrative Action’ 3rd Edn.p. 59  by S. A.de Smith, referred to. (2)  An appeal u/s. 64 of the Motor Vehicles Act, 1939, lies only against the grant of permit, and not against the  order issuing a permit made in pursuance of the order granting the permit.   Issuance of the permit is only a  ministerial  act necessarily following the grant of permit. [765 G] Kundur Rudrappa v. The Mysore Revenue Appellate Tribunal and Ors. [1976] 1 S.C.R. 188, followed. 762

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeal Nos.  1214  and 1292 of 1977. Appeals  by Special Leave from the Judgment and Order  dated 31-3-1976 of the Allahabad High Court in Second Appeal  Nos. 64 and 63 of 1976 respectively and                Civil Appeal No. 1293 of 1977 Appeal  by Special Leave from the Judgment and  Order  dated 26-4-76 of the Allahabad High Court in Civil Misc.  Writ No. 652/76 and                Civil Appeal No. 1342 of 1977 Appeal  by Special Leave from the Judgment and  Order  dated 29-4-77 of the Allahabad High Court in Civil Misc.  Writ No. 11466/ 75 and Civil Appeal Nos. 1487, 1341 and 1412 of 1977 Appeals  by Special Leave from the Judgment and Order  dated 6-10-76 of the Allahabad High Court in S.A. Nos. 160, 182  & 183/ 76. A.   K.  Sen  (in CA 1214/77) M/s.  J. P. Goyal  &  Shreepal Singh  for  the  Appellants in CA Nos. 1214,  1292,  1293  & 1342/77. S.   N. Kacker, Sol.  Genl., (in CA 1214/77) O. P. Rana & M. V. Goswami, Advs. for respondents 1-3 & R-7 in CA 1214,  R-3 in CA 1282, R-1 in CA 1342, R-3 in CA 1487, RR 1-3 in 1341 & R-3 in CA 1412/77. B.   Sen,  (Oper.  R. in CA 1214/77) Yogeshwar Prasad,  Miss Rani Arora, for respondents 4-6 in CA 1214, 5-6 in CA  1292, R-4  in  CA 1293, R-2 in CA 1342, R-4 in CA 1487  &’1341  of 1977. Miss Rani Arora, for R-4 in CA 1412/77. S.   Markandeya,  Adv.  and  Miss  Chitra  Bhadri,  for  the Appellant in CA 1487, 1341 & 1412/77. M/s.  R. K. Garg, S. C. Agarwala & V. J. Francis, Advs.  for

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Caveator in CA 1293/77. The, Judgment of the Court was delivered by UNTWALIA, J.-In this batch of seven appeals by special leave the points involved are identical.  It is a glaring  example of unnecessary litigation between the various stage carriage operators,  which  could  have been  avoided  if  the  State Government  of  Uttar Pradesh would not have come  out  with varying laws and oscillating policies.  The facts of all the appeals are similar and common except in regard to 763 the   parties,   routes   in  question,   and   some   other consequential details. We proceed to- state the facts from Civil Appeal No. 1214 of 1977  only. Under section 47(3) of the Motor  Vehicles  Act, 1939-hereinafter  to be referred to as the Central  Act  the Regional Transport Authority, Meerut had limited the  number of  stage carriage permits to be thirty only for the,  route Meerut-Rohta-Sinali-Baraut.   In or about the year  1971  an advertisement was made calling for the applications to  fill up  eight vacancies, as twenty-two permits out of the  limit of thirty having been already granted were operative and  in force.   In October, 1971 the Regional  Transport  Authority granted  eight permits to the respondents in one  appeal  or the other.  Fifty applicants who were not granted permits by the  Regional Transport Authority filed appeals  before  the State    Transport   Appellate   Tribunal   (for    brevity, hereinafter, the Appellate Tribunal) under section 64 of the Central Act.  While the said appeals were pending, The  U.P. Motor  Vehicles  Amendment  ordinance  No.  9  of  1972  was promulgated  on  March 16, 1972.  It was.  replaced  by  The Motor Vehicles (Uttar Pradesh Amendment) Act, 1972-U.P.  Act No. 25 of 1972-hereinafter called the U.P. Act of 1972.   By the Ordinance followed by the Act aforesaid, section 43A was inserted  in the Central Act after ,section  43  authorising the State Government to "issue such directions of a  general character  as it may consider necessary or expedient in  the public  interest in respect of any matter relating  to  road transport" to the various Transport Authorities.  The object of  the Act was to do away with the limit on the  number  of permits  to be granted for stage carriages.   Sub-section(2) of   section  43-A,  in  particular,  empowered  the   State Government  in  public interest to issue a  direction  by  a notification  in  the  Gazzette  to  grant  permits  to  all eligible applicants except in respect of routes or areas for which  schemes had been published under Section 68C  of  the Central Act.  Some amendments were brought about in  section 47  of  the  Central Act.  But for  the  purposes  of  these appeals  the one to be pin-pointed is the deletion  of  sub- section (3) from section 47, the consequence of which was to delimit the number of permits to be granted for a particular route.  On March 30, 1972, a notification was issued by  the State  Government under Section 43-A(2) of the U.P.  Act  of 1972  directing  the Transport Authorities  to  grant  stage carriage  permits to all the eligible applicants.   Some  of the stage carriage permit holders on various routes in U.P., including  some of the respondents, challenged the  validity of  the U.P. Ordinance followed by the U.P. Act of 1972  and the  notification  dated  March  30,  1972  by  filing  writ petitions  in  the  Allahabad High Court.   The  High  Court dismissed  their writ petitions.  They came up in appeal  to this   Court.    The   appeals  were   dismissed   and   the constitutional   validity  of  the  impugned  law  and   the notification  was upheld by a Bench of four  learned  Judges including one of us (Goswami J.). The decision of this Court is  reported in Hans Raj Kehar & Ors. v. The State  of  U.P.

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and  Ors. (1) The decision of this Court was handed down  on December 4, 1974. The    appeals remained pending before the Appellate Tribunal because of (1)  [1975]2S.C.R. 916=A.T.R.  1975 S.C. 389. 12-951 SCI/77 764 this first round of litigation.  Eventually the appeals were allowed  on February 19, 1975 by the Appellate Tribunal  and each one of the fifty applicants was granted one permit over and  above  the  eight  already  granted  by  the   Regional Transport  Authority.  Pursuant to, the order of grant  made by the Appellate Tribunal, permits, were to be issued by the Regional  Transport Authority if the grantee produced a  fit vehicle,  meaning there by roadworthy vehicle registered  in his name by the 31st March, 1975 and if by the said date  he filed  an  affidavit  sworn  by  him  before  the   Regional Transport  Authority  to  the effect that he  had  not  been convicted  of any Criminal   offence under the Indian  Penal Code  during  the  preceding  five  years.   The   Appellate Tribunal,  in its order, had further made it clear that  the time  fixed  by it for the implementation of  the  order  of grant  was under no circumstances to be extended and if  any of the applicants failed to comply with it, sanction of  the permit  in favour of the defaulting applicant was to,  stand automatically  revoked.  The appellants,  however,  complied with  the order and fulfilled the conditions of  the,  grant within  time.  But before permits could be actually  issued, another round of litigation started at the instance of  Rama Kant Ahluwalia and others who had been granted eight permits by  the Regional Transport Authority as per  its  Resolution pissed  on October 29, 1971.  ’They challenged the order  of the Appellate Tribunal by filing a writ petition in the High Court  which was summarily dismissed on February  27,  1975. Three  more  writ petitions filed by  some  other  operators challenging  the very same order of the  Appellate  Tribunal were also dismissed after hearing on September 10, 1975.  It may  be  stated  here at this stage that  permits  were  not actually  issued even though the High Court had vacated  the stay orders sometime in June or July, 1975. After  dismissal  of the writ petitions by the  High  Court, came another notification issued by the State Government  on September  24,  1975 under section 43-A of the U.P.  Act  of 1972 proposing to change their policy of granting permits to all eligible applicants.  In the main, we shall be concerned in  these appeals with the true meaning and effect  of  this notification  the relevant portions of which will be  quoted hereinafter. The  notification of September 24,  1975  was considered by this RegionalTransport Authority as putting a bar to the issuance of the permits. The      appellants, therefore, filed Civil Miscellaneous Writ Petition No. 12238 of  1975 in the High Court challenging the  notification  as also  the U.P. Ordinance 35 of 1975 which had  been  promul- gated in the meantime on November 12, 1975.  They prayed for an order or a writ of mandamus directing the Regional  Trans port  Authority to issue the permits pursuant to  the  order dated  19.2.1975  of  the,  Appellate  Tribunal.   The  writ petition was dismissed by a learned single Judge of the High Court  on  February  12, 1976.  The appellants  went  up  in appeal  under  the letters patent.  The, appeals  were  dis- missed  by a Division Bench on March 31, 1976.  Hence  these appeals. U.P.  Ordinance 35 of 1975 followed by Ordinance 9  of  1976 promulgated  on  February  16, 1976 was replaced  by  U.  P. Amendment  Act  15 of 1976 which came into force on  May  1, 1976.  Although the Division Bench of the High Court has not

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rested  its judgment, and in our opinion rightly,  upon  the Ordinance and U.P. Act of 1976, the 765 learned single Judge had done so.  We shall briefly refer to the  change of law brought about by the said  Ordinance  and the Act because the learned Solicitor General appearing  for the  State of Uttar Pradesh endeavoured to make  some  point out  of  it.   So did the other counsel  appearing  for  the operator respondents. The   main   question,   however,  which   falls   for   our determination in these appeals is as to whether the Regional Transport Authority failed to do its legal duty in  refusing to issue the permits pursuant to the order of the  Appellate Tribunal in view of the notification of the State Government issued on September 24, 1975 under section 43-A of the  U.P. Act  of  1972 and whether the High Court was  right  in  not granting the writ asked for by the appellants. The,  Appellate  Tribunal  in  its  order  dated  the   19th February,  1975  following  the notification  of  the  State Government issued on March 30, 1972 had ordered the grant of permits  to all the applicants.  The relevant words  of  the order are as follows :-               "It would, therefore, appear to be  reasonable               that these appellants may also be granted  one               permit each on this route, if they can produce               a  fit vehicle within the given time and  they               can  satisfy the RTA as to their  antecedents,               by means of an affidavit." All the fifty appeals  were allowed.       The order of  the Regional Transport Authority was set aside and the operative portion of the order was made in terms as mentioned below :-               "Without  disturbing  the grant of  permit  in               favour of the respondents, these 50 appellants               will   also  be  granted  one  regular   stage               carriage permit each. on this route,  provided               they produce a fit vehicle duly registered  in               their own name by 31st March, 1975, and during               this period they also rile their own  personal               affidavits before the RTA to this effect  that               they  have not been convicted of any  criminal               offence under I.P.C. during the last 5  years.               This  time  for Placing the  vehicle  and  for               filing the affidavits, will not be extended on               any  grounds, and if the compliance, as  above               is not made in the given time, the sanction of               the   permit  in  favour  of  the   defaulting               appellants will automatically stand revoked." In Kundur Rudrappa v. The Mysore Revenue Appellate  Tribunal & Ors(1).  It was held by a Division Bench of this Court, to which both of us were parties, that appeal under section  64 of the Central Act lies only against the grant of permit and not against the order issuing a permit.made in pursuance  of the  order granting the permit.  "Issuance of the permit  is only  a ministerial act necessarily following the  grant  of the permit" was the distinction pointed out at page 190. Then  came the change of policy notification  involving  the parties  in  further  litigation.   The  Preamble  of   this notification dated September 24, 1975 states that the  State Government  is of opinion that the policy of  granting  such permits to all eligible applicants requires (1)  [1976] 1 S.C.R. 188. 766 review and since such review was likely to take sometime  in the  meantime it was necessary to stay "the disposal of  all pending  applications for permits or entertainment of  fresh

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applications."  The notification dated the 30th March,  1972 was  rescinded  with  immediate effect  by  clause  (1)  and thereafter clause (2) provided :               "The  consideration of applications for  stage               carriage  permits pending with  any  Transport               Authority shall stand postponed until  further               directions  are issued in this behalf  by  the               State Government." The  High  Court  thought that since permits  has  not  been issued,  they could not be issued because, of the  notifica- tion  dated  September 24, 1975.  Although not in  form,  in substance,  the  High Court thought that the effect  of  the order  of the Appellate Tribunal was to remand the cases  to the Regional Transport Authority for granting permits to the appellants on being satisfied that the vehicles put by  them were   roadworthy  and  that  their  antecedents  were   not undesirable.  In our judgment the High Court has fallen into an error in this regard.  AR the parties were agreed  before us that clause (2) of the notification had not the effect of recalling, revoking or cancelling the permits which had been granted  and  issued  pursuant  to  the  notification  dated 30.3.1972. It was, also, beyond any debate or doubt that  if the  applications  for the grant of stage  carriage  permits were   pending  with  any  Transport  Authority   when   the notification  was  issued it stood postponed  until  further directions   were  issued  in  this  behalf  by  the   State Government.   But the scope for litigation and  argument  in these  cases  cropped up because they did  not  clearly  and precisely fall in one line or the other.  If on the  special facts of these cases consideration of the applications could be  taken to be pending with any Transport  Authority,  then they  bad  to remain pending until further  directions  were issued.    But  if,  on  the  other  hand,  on   a   correct appreciation of the legal position the applications had been finally  disposed of by the order of the Appellate  Tribunal and  they were not pending for any consideration  then  they did  not  stand  postponed  and permits  had  to  be  issued pursuant  to  the  order of  the  Appellate  Tribunal.   The Regional  Transport Authority had no discretion or power  in the  matter  to dispose of the applications one way  or  the other. To  our mind the problem does not present  much  difficulty. The  applications  filed  by the  appellants  for  grant  of permits  to  them were rejected by  the  Regional  Transport Authority  in October, 1971.  They were finally disposed  of and  permits  were  granted  to them by  the  order  of  the Appellate Tribunal made on 19-2-1975.  The consideration  of the applications for grant of permits was no longer  pending after  the  said order.  What remained pending  was  a  mere ministerial  act to be performed by the  Regional  Transport Authority or by any delegate of that authority in accordance with  Rule  44A  of the U.P.  Motor  Vehicles  Rules,  1940. According  to  the  terms  of the  order  of  the  Appellate Tribunal,  nothing  substantial or unsubstantial was  to  be decided  by the Regional Transport Authority  in  connection with the grant of permits.  The Regional Transport 767 Authority could not say that it refused to grant the  permit on one ground or the other.  What was left to be done by  it was  only  to find out whether a  particular  applicant  had complied  with  the terms of the order and within  the  time granted  by the Appellate Tribunal.  If the terms  were  not complied with by the specified time the grant stood  revoked not because the Regional Transport Authority could revoke it but  because the Appellate Tribunal had specified it  to  be

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so.  As already stated, all the applicants had complied with the  terms  of  the  Appellate  order  within  time,  actual issuance  of  the permits could not be done because  of  the stay  orders  made  by the High Court in  the  earlier  writ petitions.  In sum and substance, therefore, the  appellants became  entitled  to the issuance of the  permits  in  their favour  by 31st March, 1975.  It is difficult to  understand as  to  in what sense their  applications  remained  pending after 31st March, 1975 and how did they remain pending  even in the remotest sense of the term after the vacation of  the stay  order by the High Court and the dismissal of the  writ petitions  on  the  10th  of  September,  1975.   When   the notification  dated  September  24,  1975  was  issued   the position was absolutely clear that nothing in any sense  was pending except that in the physical sense a paper containing the permit was not actually issued.  Clause (2) of the  said notification was not meant to cover nor did it cover a  case of  this kind.  The Regional Transport Authority  failed  in its  legal  duty  in  not  implementing  the  order  of  the Appellate  Tribunal  and  issuing the permits  as  a  result thereof.   It was, therefore, just. and proper to grant  the writ of mandamus as asked for by the appellants. We may now briefly deal with the additional points urged  by the  Solicitor General and M/s B. Sen and Yogeshwar  Prasad. For  the  purpose of appreciating some of  those  points  it would  suffice to refer to the provisions of U.P. Act 15  of 1976  which  were  almost  in identical  terms  to  the  two Ordinances  which had preceded it.  Section 21 of  this  Act amended section 43-A with retrospective effect.  The  effect of this was to bring into force section 47(3) of the Central Act  and  with  retrospective effect.   Sub-section  (3)  of section  21, however, provided : "Any direction  under  sub- section  (1) may be issued with retrospective effect."  Then sub-section (5) is in the following terms               "Where  any  direction is  issued  under  sub-               section (1)               with retrospective effect then-               (a)   any  Transport  Authority or  the  State               Transport  Appellate Tribunal may  review  any               order  passed  earlier by it with  a  view  to               making it conform to such directions, and  may               for  that  purpose cancel any  permit  already               issued ;               (b)   Any Transport Authority may apply to the               High  Court for review of any order passed  by               such  Court  earlier with a view  to  enabling               such Authority to comply with such direction." The  argument on behalf of the State was that the  order  of the  Appellate Tribunal became illegal as being against  the law which 768 was  by  a  legal fiction, made to come into  force  by  its retroactive action when the said order was passed.  Reliance was   placed  upon  the  decision  of  this  Court  in   The Commissioner  of  Income  Tax, Bihar &  Orissa  v.  Maharaja Pratap  Singh  Bahadur of Gidhaur(1).  In  our  opinion  the argument is, devoid of any substance.  There was nothing  in the  Ordinance or the U.P. Act of 1976 to make the order  of the  Tribunal  illegal.  The order when made was  legal  and with jurisdiction.  The retrospective change in law had  not the  effect  of nullifying the order.  It is to  be  further emphasised that if the order was complete and final, in  the sense  we have explained above, then two formalities had  to be gone into in order to get rid of that order.  Firstly,  a special  direction had to be issued under ’sub-section  (1).

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No  such  direction  issued  was  brought  to  our   notice. Secondly,  the  procedure of review had to  be  followed  as provided  for  in  sub-section  (5) of  section  21  of  the Amending  Act  of  1976.  In Maharaja  Pratap  Singh’s  case (supra)  the amendment of the law with retrospective  effect had made the proceeding void ab initio.  The law was  retro- spectively amended during the pendency of the appeals before the  Appellate  Assistant Commissioner.  Any order  made  in such  a  proceeding was, therefore, held to  be  void.   The ratio  of that case is wholly, inapplicable  for  nullifying the order of the Appellate Tribunal. It  was  then submitted by learned counsel for  the  parties that because of the change in law in 1976, this Court should not  for  the sake of justice allow these appeals  filed  on grant of special leave under Article 136 of the Constitution and  issue a writ of mandamus which will have the effect  of directing  the Regional Transport Authority to do  something contrary  to the present law.  In our opinion, there  is  no substance  in this point either.  The High Court refused  to issue the writ on a misapprehension of the correct  position in law and by misreading the order of the Appellate Tribunal and    the   notification   dated   September   24,    1975. Retrospective  change  in law brought about in  1976  cannot justify allowing the wrong to continue.  The injustice  done to the appellants must be rectified.  The result of the writ will  not  be tantamount to asking  the  Regional  Transport Authority to do something which will run contrary to section 47(3)  or the proviso to section 57(3) of the  Central  Act. It  would be merely asking the Regional Transport  Authority to obey the valid order of the Appellate Tribunal which  has not been rendered void on any ground whatsoever. Mr.  A. K. Sen, learned counsel for the appellants drew  our attention  to what S.A. de Smith has pointed out at page  59 of  the  third edition of his  well-known  treaty  "Judicial Review of Administrative Action" :-               "It  may describe any duty, the  discharge  of               which  involves  no element of  discretion  or               independent  judgment.   Since  an  order   of               mandamus will issue to compel the  performance               of  a ministerial act, and  since,  moreover,               wrongful  refusal to carry out  a  ministerial               duty may give rise to (1)  [1961] 2 S.C.R. 760. 769               liability  in tort, it is often  of  practical               importance to determine whether discretion  is               present  in  the performance  of  a  statutory               function.    The  cases  on   mandamus   show,               however,   that  the  presence  of   a   minor               discretionary  element is not enough to  deter               the  courts from characterising a function  as               ministerial." We think that the Regional Transport Authority, pursuant  to the order of the Appellate Tribunal, had merely to perform a ministerial  duty and the minor discretionary element  given to  it  for finding out whether the terms of  the  Appellate Order  had been complied with or not is not enough to  deter the Courts from characterising the function as  ministerial. On the facts and in the circumstances of this case by a writ of  mandamus the said authority must be directed to  perform its function. For  the reasons stated above,, we allow these  appeals  and direct  the Regional Transport Authority or Authorities,  as the  case may be, to implement the orders of  the  Appellate Tribunal,  issue  the permits to the appellants in  all  the

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cases.  We would, however, Eke to make it clear that permits were  to  be  issued  for a  period  of  three  years  only. Temporary  permits were issued to the appellants or some  of them  from  time to time in pursuance of the  interim  order made  either by the High Court or by this Court.  The  total period  of such temporary permits in the case of any of  the appellants  must be deducted and adjusted as in the  present situation  of  the law it would be just to do so,  from  the period  of  three years.  In the circumstances, we  make  no order as to costs in any of the appeals. M.R.     Appeals allowed. 770