Case: A. S. T. Arunachalam Pillai Vs. M/S. Southern Roadways (Private) Ltd

The appellant is the proprietor of Sri Vinayagar Transports. Woriyu, Tiruchirapalli. He held a permit to ply his bus on the route Tiruchirapalli Mainguard Gate to Tiruchirapalli Railway Station via Palakarai and Round Tana. He applied on July 19, 1954, to the Regional Transport Officer, Tirucharapalli for variation of the route so as to ply his bus between Mainguard Gate and Golden Rock via Palakarai, Round Tana, Tiruchirapalli Railway Station and retrace again to Round Tana and thence to Golden Rock. The Regional Transport Officer notified this application for variation and called for objections. The appellants application and the objections thereon were heard on July 15, 1955, but the Regional Transport Officer rejected the application. The appellant filed a revision petition before the Government of Madras under S. 64A of the Motor Vehicles Act, hereinafter called the Act, S. 64A having been introduced into that Act by the Legislature of the State of Madras. The Madras Government after having heard objections to the revision petition, by its order dated December 28, 1955, set aside the order of the Regional Transport Officer and directed the grant of the variation in the permit of the appellant as prayed for by him. Against the order of the Madras Government the respondent, the Southern Roadways (Private) Ltd., hereinafter called the respondent, filed a petition under Art. 226 of the Constitution in the Madras High Court on January 2, 1956, for the issue of a writ of certiorari to quash the order of the Government of Madras.2. When the petition came up for hearing before Rajagopalan, J., the respondent raised a plea which was not taking in the petition under Art. 226 of the Constitution of the effect that the Regional Transport Officer had no jurisdiction to grant the variation asked for by the appellant and the Govt. had likewise no jurisdiction to grant in revision what the Regional Transport Officer himself could not have granted. This plea was made on account of a Division Bench decision of the Madras High Court in Writ Appeal No. 107 of 1955, arrived at since the filing of the petition, wherein it was held that the Regional Transport Officer had no jurisdiction to deal with an application for variation of the conditions of a permit. Rajagopalan, J., following the decision in Writ Appeal No. 107 of 1955 held that the Regional Transport Officer had no jurisdiction to deal with the appellants application for variation and that it followed that the Government of Madras had equally no jurisdiction to grant the variation on a revision petition filed against the order of the Regional Transport Officer. The learned Judge accordingly set aside the order of the Government of Madras dated December 28, 1955, without going into the other contentions raised by the respondent in its petition under Art. 226. The appellant appealed against the decision of Rajagopalan. J. Although in the appeal the correctness of the decision in Writ Appeal No. 197 of 1955 was questioned it was not pressed because of the decision of the Full Bench of the Madras High Court in Writ Appeals Nos. 56 and 57 of 1956 decided on April 12, 1957: ( (S) AIR 1957 Mad 599   (FB), Krishnaswamy Mudaliar v. Palani Pillai). The argument in the present case therefore proceeded on the footing that the Regional Transport Officer, Tiruchirapalli, had no jurisdiction to deal with the appellants application for variation.3. In the High Court on behalf of the appellant it was urged that the respondents has submitted to the jurisdiction of the Regional Transport Officer and therefore could not at a later stage obtain the discretionary writ of certiorari on the ground that there was lack of jurisdiction. It was next contended that even if the Regional Transport Officer had no jurisdiction to deal with the appellants application for variation the order of the Government of Madras which was sought to be quashed could not be said to be one passed without jurisdiction or excess of jurisdiction because the Government had undoubtedly power to pass the order in question under S. 64A of the Act. Both these contentions were rejected and the decision of Rajagopalan, J. was affirmed. The High Court, however, granted a certificate that the case was a fit one for appeal to this Court.

Reasoning:
5. In our opinion, although the respondent had submitted to the jurisdiction of the Regional Transport Officer and had not in his petition under Art. 226 in the High Court taken the objection that that officer had no jurisdiction to vary the conditions of a permit, the High Court acted rightly in allowing the respondent to urge that the Regional Transport Officer had no jurisdiction to vary the conditions of a permit. It was not until the decision of the High Court in Writ Appeal No. 107 of 1955 that it became the considered view of that Court that the Regional Transport Officer had no jurisdiction to make any such variation. When the laws was so declared by the High Court it could not reasonably be said that the High Court erred in allowing the respondent to take this point although in its petition under Art. 226 the point had not been taken. This was obviously because the decision of the High Court in Writ Appeal No. 107 of 1955 had not been given at the time of the filing of the petition. Since the question went to the root of the matter and it involved the question whether the Regional Transport Officer had jurisdiction to vary the conditions of a permit the High Court faced with a Division Bench decision of its own on the matter, could not very well refuse permission to the respondent to rely on that decision in support of its petition questioning the validity of the order of the Government of Madras made under S. 64A of theour opinion, S. 64A is a power vested in the State Government by way of revision of orders passed under Chapter IV of the Act by any authority or officer subordinate to it. This is not a power which the State Government could exercise by way of original jurisdiction which was vested elsewhere. In our opinion, although the words "may pass such order in reference thereto as it thinks fit" are wide in expression, they do not mean that the State Government could pass an order in exercise of revisional jurisdiction which the authority whose order the Government was revising had no jurisdiction to pass. The State Government could undoubtedly set aside an order of an authority or officer subordinate to it who had no jurisdiction to pass the order in question under Chapter IV but it could not substitute for that order its own order directing the variation in the conditions of the permit of the appellant.It is significant that S. 43 which deals with the power of the State Government to control Road Transport does not mention that such a Government has the power to vary the conditions of a permit, although the various powers conferred by that section are fully specified, including the power to vary the notification issued; under the section. If the Act had intended to give the power to the State Government to vary the conditions of a stage carriage permit granted to a particular person it would have specified such a power in this section. The authority which is empowered to vary the conditions of a permit is stated in S. 48A which certainly is not the State Government. Under the Act, therefore, no such authority was vested in the State Government and the words in S. 64A "as it thinks fit" must mean within the ambit of the provisions of the Act.It will be seen from what has been stated that it is the State Transport, Authority and no other which is authorised under S. 48A to vary the conditions of a permit of a stage carriage. Section 44A, however, authorises the State Government to appoint a State Transport Commissioner. It further provides that notwithstanding anything contained in the Act the State Government may by notification authorize the State Transport Commissioner or any officer subordinate to him to exercise and discharge in lieu of any other authority prescribed by or under the Act such powers and functions as may be specified in the notification. By this section, although under S. 48A it is the State Transport Authority which can vary the conditions of a stage carriage permit, the State Government could, notwithstanding the provisions of that section, authorise the State Transport Commissioner to exercise such powers in lieu of the State Transport Authority. It could also confer such power on an officer subordinate to the State, Transport Commissioner. The vital question for determination is, how are the words "any officer subordinate to him" to be construed. In construing these words the provisions of S. 133A will have to be kept in mind as it was contended on behalf of the respondent that these sections should be read together. It was urged on behalf of the respondent that under S. 133A (3) as to who was subordinate to whom in the Motor Vehicles Department had to be prescribed by rules. As no rules had been framed it could not be said that the Regional Transport Officer was subordinate to the State Transport Commissioner.In paragraph 6 of the statement of the case filed by the respondent it was stated that in the exercise of the powers conferred under S. 44(1) of the Act the Government of Madras constituted Provincial and Regional Transport Authorities. It also set up a Motor Transport Department with a Transport Commissioner as its head and officers in that Department, in the lower scale, were the Regional Transport Officers who functioned as the Secretaries of the respective Regional Transport Authorities called the Road Traffic Board. It was further stated in paragraph 7 that although a Regional Transport Officer was a subordinate of the Transport Commissioner on the administrative side he could not be held to be a subordinate officer within the meaning of S. 44A. The State Government may establish a Motor Vehicles Department and appoint officers thereto under S. 133A, but mere appointment of officers in that Department could not invest them with statutory functions to be discharged under the Act and under the Rules. Section 133A contemplates framing of rules to regulate the discharge by officers of the department of their functions as also to state the authorities to whom such officers shall be subordinate and the duties to be performed by them. It was not suggested that any duties or powers of a statutory nature had been vested in the Transport Commissioner; nor was there any rule showing that the Regional Transport Officer is a subordinate of the Transport Commissioner for the purposes of the Rules. The statement of the case further stated that S. 44A required a functional subordination and not merely an administrative one.13. The Madras Financial Code Vol. II Appendix I shows the list of Heads of Departments of the Government of Madras. The Transport Commissioner is shown as the Head of a Department. The Half-Yearly List of Gazetted Officers in the Transport Department corrected upto the 31st July, 1955, shows that the Transport Commissioner is also the Chairman, Central Road Traffic Board, Madras, and subordinate to him are the Secretary, Central Road Traffic Board, Madras, Assistant Secretary, Road Traffic Board, Madras and Regional Transport Officers. There can be no question therefore that the Regional Transport Officers are officers subordinate to the Transport Commissioner. It is perhaps for this reason that the respondent admits that the Regional Transport Officers, administratively, are subordinate to the Transport Commissioner.Section 44A speaks merely of an officer subordinate to the Transport Commissioner to whom by notification the Government of Madras may confer the authority in lieu of any other authority prescribed by or under the Act to discharge the powers and functions of thatwas worthy of notice that S. 44A authorized the State Government, notwithstanding anything contained in the Act, to authorize any officer subordinate to the Transport Commissioner to exercise and discharge in lieu of any other authority such powers and functions as may be exercised by that authority. The section did not depend upon any rules to be framed under S. 133A. Furthermore, S. 133A was an enabling section by which a State Government could, if it so wished, for the purpose of carrying into effect the purposes of the Act establish a Motor Vehicles Department. Untile such a Department was established the question of framing rules under the section did not arise.14. There is no clear material on the record or in the Madras Road Traffic Code from which it can be ascertained precisely as to when the Madras Government established a Motor Vehicles Department. It is significant, however, by a notification dated December 20, 1955, cl. (m) was added to rule 3 of the Rules and this stated that "Transport Department" means the Motor Vehicles Department set up under S. 133A. of the Act. Apparently, until this date Transport Department was something other than the Motor Vehicles Department set up under S. 133A of the Act. It is clear, therefore, that on February 14, 1953, when the notification G. O. Ms. No. 527 was issued by the Government of Madras the Regional Transport Officers were officers subordinate to the Transport Commissioner. Even if at some time or the other a Motor Vehicles Department had been set up by the Government of Madras admittedly the Government of Madras had framed no rules under S. 133A (3).If rules had been framed under that section and they showed that the Regional Transport Officers were not subordinate to the Transport Commissioner then a question might well have arisen as to how the words "any Officer subordinate to him" should be construed owing to a conflict between the Regional Transport Officer being administratively subordinate to the Transport Commissioner and yet not subordinate to him by virtue of the rules framed under S. 133A. Since, however, no rules have been framed under this section so far as S. 44A is concerned, any officer who is subordinate to the Transport Commissioner in any way must include the Regional Transport Officers in the Transport Department.The words of the section are wide enough for this interpretation and they are incapable of being given the restricted meaning suggested on behalf of the respondent. It was, however, suggested that anomailes may occur in S. 44A is construed so widely; because a Regional Transport Officer was a Secretary of a Regional Transport Authority and therefore subordinate to that authority and yet he could be empowered to vary the conditions of a permit which the State Transport Authority, to which the Regional Transport Authority is subordinate, may have declined to do. In the matter of interpretation such considerations cannot be of much assistance. If the words of S. 44A are wide enough to mean any officer subordinate to the Transport Commissioner they must be given effect to. In the matter of interpretation a Court could not, if the words were plain enough, proceed on the basis that possibly the Government of Madras may misuse its powers.