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
section 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 CJ
The short but important point of law which has been raised for our decision in this appeal by special leave is whether GO No 1298 issued by the Gov ernment of Madras on April 28 1956 in exercise of its powers conferred by section 43A of the 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 section 43A
The impugned order was issued as early as 1956 and since then its validity 3 has never been impeached in judicial proceedings
Litigation 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 article 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 section 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 article 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
LPD1SCI 1a 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 section 43A known as GO 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 article 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 vs The Road Traffic Board Madras by its Secretary1
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 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 section 471a 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 section 44 of the Act
His appeal failed and so he moved the Madras High Court under section 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 section 58 sub section
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 section 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 section 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 CSS Motor Service Tenkasi vs The State of Madras and another1
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 CSS Motor Service urged before the High Court that under article 191g 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 article 196
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 article 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 section 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 section 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 section 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 CSS 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 section 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 cls1 to 4 in that part
The second part deals with the system of assigning marks to 1 ALR 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 article 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 Article 226
In Ms Raman and Raman Ltd vs The State of Madras and others1 this Court by a majority decision held that section 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 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 vs The State Transport Appellete Tribunal Madras and others1 this Court held by a majority decision that the orders and directions issued under section 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 article 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 section 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 section 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 ChIV 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 AIR 1959 SC 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 sections 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 article 226 vide New Prakash Transport Co Ltd vs New Suwarna Transport Co Ltd1 and Ms Raman and Raman Ltd vs The State of Madras and others3 and R Abdulla Rowther vs The State Transport Appellate Tribunal Madras and others3 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 section 68 which confers power on the State Government to make rules for the purposes of ChIV 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 section 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 p 1181959 2 SCR p 227AIR 1959 SC 89610 made
That is the effect of section 133i
Sub cl2 of section 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 sections 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 section 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 section 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 CSS Motor Service case1 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 section 42 and section 43 and section 44 which follows support the argument that the field covered by section 43A like that covered by sections 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 section 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 section 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 section 43A it ought to be held that the said section authorises the State Government R 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 section 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 section 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 section 43A section 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 section 43A had expressly observed that what section 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 section 43A authorises the State Government to issue directions or orders in that wide sense section 68 would become redundant and safeguards so elaborately provided by section 133 while the State Government purports to exercise its authority under section 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 section 68 would have dealt with that topic separately and should have provided safeguards controlling the exercise of that power by section 133
It is likewise significant that the directions and orders issued under section 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 section 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 section 43A
Besides if section 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 section 43A itself provides that effect shall be given to the orders issued under it and so if an order issued under section 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 section 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 section 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 CSS Motor Service1 though it Would appear that what the High Court had suggested was presumably the making of the rules under section 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 471a 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 section 47 by indicating additional considerations which the Transport Authority has to bear in mind or the Legislature may amend section 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 section 68 without amending section 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


Summary:
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 GO No 1298 dated April 28 1956 issued under section 43A of the 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 GO and respondents 2 and 3 having secured the maximum number of marks were granted the permits
On the rejection of a petition under article 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 GO 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 section 43A of the 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
Ms Raman and Raman vs The State of Madras 1959 2 SCR 227 relied on
iiIt is well settled that sections 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 article 226
LPD1SCI 1 2 New Prakash Transport Co Ltd vs Suwarna Transport Co Ltd Ms Raman and Raman Ltd vs State of Madras  B Abdulla Rowther vs State Transport Appellate Tribunal Madras AIR 1959 SC 896 relied on
iii In interpreting section 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 section 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