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1952 DIGILAW 23 (KER)

Mrs. Kamala Bhaskara Menon v. States

1952-03-07

VITHAYATHIL

body1952
Judgment :- 1. This is a petition under Art.226 of the Constitution of India for a writ of mandamus. The petitioner is the proprietorix of a public transport Company running buses in various routes. One of such routes is Edacochi-Kodanad via., Ernakulam, Alwaye and Perumbavoor. The first counter petitioner represents the State of Travancore-Cochin. The 2nd counter petitioner represents the Transport Authority of Travancore-Cochin. The 3rd counter petitioner is the proprietor of a public transport concern known as Jai Hind Motor Service. The 4th counter petitioner is the Managing Director of another public transport concern, namely, The Swaraj Motors Ltd., Kottayam. 2. The petitioner is running two buses in the Edacochi-Kodanad route more than two years past. On the 16th May 1950 the Transport Authority published in the Government Gazette a Notification to the effect that no further applications would be entertained for permits running buses along certain routes until otherwise notified. Two such routes are Edacochi-Kodanad and Palai-Alwaye. 3. On 3.7.1950 the 3rd counter petitioner applied for a route between Bharananganam and Ernakulam via Perumbavoor and Alwaye. The major portion of the route is covered by Edacochi-Kodanad route and Palai-Alwaye route mentioned in the Notification of 16th May 1950. The Transport Authority rejected that application. The 3rd counter petitioner preferred an appeal to Government from the order of the Transport Authority and Government allowed the appeal and ordered the Transport Authority to issue a permit to the 3rd counter petitioner. It is alleged that this order of Government is ultra vires of the powers of the Government under the Motor Vehicles Act, and the prayer in the petition is for quashing the order and for issuing a writ of mandamus restraining the 2nd counter petitioner from issuing the permit to the 3rd counter petitioner. 4. Counter petitioners 1, 2 and 3 oppose the petition. The petitioner has filed an affidavit in support of his petition. The Assistant Secretary to Government has filed, a counter affidavit on behalf of counter petitioners Nos.1 and 2 and the 3rd counter petitioner also has filed a counter-affidavit. 5. The question for consideration is whether the order of Government setting aside the decision of the Transport Authority is ultra vires of the powers of the Government under the Motor Vehicles Act. 6. S.45 of the Act confers on the Transport Authority the power to issue a stage carriage permit. 5. The question for consideration is whether the order of Government setting aside the decision of the Transport Authority is ultra vires of the powers of the Government under the Motor Vehicles Act. 6. S.45 of the Act confers on the Transport Authority the power to issue a stage carriage permit. S. 44 provides what all matters should be considered by the Transport Authority in the matter of granting or refusing to grant a stage carriage permit. S. 54 prescribes the procedure that should be followed when an application for a stage carriage permit is made by any person. Under sub-s. 3 of that section the application has to be published in the prescribed manner together with a notice of the date when the application and any representation in connection therewith would be considered. Sub-s. 4 provides that no representation in connection with the application would be considered by the Transport Authority unless it is made in writing before the appointed date and a copy is furnished to the applicant. It is admitted that the petitioner did not make any representation in connection with this application. The 4th counter petitioner made a representation and the Transport Authority rejected the application as it was of opinion that there was no necessity for a bus service on the route mentioned in the application. 7. S.60 provides for an appeal to Government from the order of the Transport Authority granting or refusing to grant a permit. Government thought that a through-service between Bharananganam and Ernakulam was desirable, both places being important from the point of view of the travelling public. The 3rd counter petitioner's appeal was therefore allowed and the Transport Authority was directed to issue a permit. 8. The main argument advanced on behalf of the petitioner is that under R. 138 of the Rules passed under the Motor Vehicles Act, the Transport Authority has got the power to limit the number of permits which may be granted for a specified route or area, that the Notification issued by the Transport Authority on 16th May 1950 was in exercise of that power, that it has the force of law, and that since that Notification has not been cancelled or withdrawn Government have no power to act in contravention of that notification. R.138 reads thus: "When the Transport Authority has, in the exercise of its powers under the Act, imposed a limit upon the number of permits of any class which may be granted for a specified route or a specified area and has already granted such number of permits of that class the Authority may decline to receive further application for such permits in respect of any such route or area". This rule only gives the Transport Authority an option to decline to receive applications for permits in respect of any specified route or area. The Notification issued by the Transport Authority only amounts to an intimation given to the public that it has decided not to receive further application for permits in respect of certain specified routes until otherwise notified. This Notification which is in fact only a notice given to the public has in no sense the force of law. It is not a rule made under the Act. The Transport Authority has no power under the Act to make rules which will have the force of law. Under R. 137 it can make bye-laws subject to certain conditions for the conduct of its business. It is thus clear that the Notification issued by the Transport Authority is not a statutory Notification having the force of law. Moreover, the words used in the R. 138 are "the Authority may decline". There is nothing to prevent the Transport Authority from receiving applications for permits even though it has by notification imposed a limit upon the number of permits that may be granted for a specified route or area. Such a Notification cannot affect the power of Government to reverse or modify the decision of the Transport Authority. So long as an appeal from the decision of the Transport Authority to Government is provided in the Act it is only the decision of Government that can be said to be the final decision. In this particular case Government thought that a through-service between Ernakulam and Bharananganam was desirable in the interests of the travelling public. It is difficult to see how this decision is ultra vires of the powers of Government. 9. It has also to be noted that Notification dated 16th May 1950 related to certain specified routes. The Bharananganam-Ernakulam route is not one of the routes mentioned in the Notification. It is difficult to see how this decision is ultra vires of the powers of Government. 9. It has also to be noted that Notification dated 16th May 1950 related to certain specified routes. The Bharananganam-Ernakulam route is not one of the routes mentioned in the Notification. It is true that this route will overlap two of the routes mentioned in the Notification. But the Notification as such does not apply to extended or curtailed routes unlike a later Notification issued by the Transport Authority on 13th April 1950. The Transport Authority itself did not regard the Bharananganam-Ernakulam route as one of the routes mentioned in the Notification of 16th May 1950. Notwithstanding that Notification the Transport Authority received the third counter petitioner's application and published it in the Gazette as required by the provisions of the Act. The reason why the Transport Authority rejected the application was that in its view there was no necessity for a bus service in that route. Thus in any view of the case the petitioner cannot rely on the Notification dated 16th May 1950 as a bar to Government exercising its appellate jurisdiction in respect of the decision of the Transport Authority. 10. It has also to be stated that the petitioner cannot be said to be an aggrieved person so far as the decision of Government is concerned. He did not make any representation in connection with the application of the third counter-petitioner when notice of the application was published in the Gazette under sub-s. 3 of S. 54 of the Motor Vehicles Act. Sub-s. 4 of that section provides that "No representation in connection with an application referred to in sub-s. (3) shall be considered by the Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation". Under S.60(e) only a person "who, having opposed the grant of a permit, is aggrieved by the grant thereof" can appeal to Government from the decision of the Transport Authority. In the circumstances the petitioner cannot be said to be a person aggrieved by the decision of Government and entitled to apply for a writ of mandamus under Art.226 of the Constitution of India. In the circumstances the petitioner cannot be said to be a person aggrieved by the decision of Government and entitled to apply for a writ of mandamus under Art.226 of the Constitution of India. Art.226 of the Constitution reads thus: "226 [1] Notwithstanding anything in Art. 32, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred on a High Court by clause (1) shall not be in deragration of the power conferred on the Supreme Court by clause (2) of Article 32." In State of Orissa v. Madan Gopal - A.I.R. 1952 Supreme Court 12 Kania, C.J. observed thus: "The language of the article shows that the issuing of writs or directions by the court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution [Fundamental Rights] has been infringed. It can also issue writs or give similar directions for any other purposes. The concluding words of Art.226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the court under this Article". It is however not necessary to decide in this case whether the right of the petitioner to move this court for relief under Art.226 of the Constitution is affected by his omission to make a representation before the Transport Authority opposing the grant of permit to the third counter-petitioner. I have found that there is no reason to hold that the decision of Government is in any way ultra vires of the powers conferred on Government under the Motor Vehicles Act. The petitioner is therefore not entitled to the writ prayed for in the petition. The petition is dismissed with costs including advocate's fee Rs. 50 for counter petitioners 1 and 2 and Rs. 50/- for the third counter petitioner. Dismissed.