TMI Blog1983 (5) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... aside the order dt. 25-11-1982 of the 'STA' declining the variation sought for, granted petitioner's application for the variation and directed the 'STA' to make the consequential and requisite endorsements on the permit. Sri Pungappa, petitioner in the writ petition is the common respondent 2 in each of the appeals. The parties will hereinafter be referred to with reference to their array in the writ petition. 2. The relevant and material facts are these : The Inter-State route concerned in this case is Bangalore to Dharmavaram (183.4 Km) via Yelahanka, Doddaballapur, Thondebhavi, Gowribidanur, Kudumalakunte, Hindupur, Penukonda, Nagasamudram, Gutti. Kudumulkunte is on Karnataka State border. In the year 1968 Government approved the Kolar Pocket Scheme which nationalised the passenger transport services between Bangalore and various places in Kolar District and several routes within Kolar District as specified in the scheme. This Inter-State 'Bangalore to Dharmavaram' route overlaps the Kolar Pocket Scheme. Though the scheme is one of total exclusion, existing permit holders operating on the Inter-State route were saved on condition that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aram route for a distance of 106 miles out of 116 miles of the latter. He made an application on 31-8-1979 for grant of two additional round trips from Bangalore to Ananthapur . The said application also was notified on 17-9-1979 inviting objections. 3. Another set of facts which requires to be noticed is that petitioner Pungappa aggrieved by what he considered an unreasonable delay in the consideration and dispose of his application dt. 14-9-1980 moved this court in W. P. 12681 of 1981 for a mandamus directing the 'STA' to consider and dispose of that application. In that said writ petition the 'STA' undertook to consider and dispose of the petitioner Pungappa's application within three months from 19-7-1982. That submission was recorded and directions issued to the 'STA' accordingly. Similarly, respondent 8, K. G. Jagannath, aggrieved by the delay in the disposal of disposal of his application dt. 31 -8- 1979 for grant of additional trips on the route between Bangalore and Ananthapur moved this Court in Writ. Petition 34927 of 1982 seeking a mandamus to the 'STA' to consider and dispose of that application. In the said writ petition, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aka, factually no such agreement in that behalf was shown to exist nor any such agreement could be inferred by reason alone of the Karnataka Gazette publication as no corresponding entry, reflecting this position, obtained in the Gazette publication of Andhra Pradesh. The quota under the alleged entry 153 for grant of additional trips was therefore, it was contended, not available within the inter-State agreement. The 'STA' accepted this contention of the objectors and held: ........... We have particularly examined this contention and found that the route Bangalore to Dharmavaram with certain provision for operation of Stage Carriage has been included, under the agreement pertaining to Karnataka. But under the corresponding reciprocal agreement published by the Andhra Pradesh Government, this route does not find its entry and hence is non-existent .......... In this particular case, as the applicant has applied for grant of additional trips on an inter-State permit under the existing inter-State agreement vide St No. 153 published by the Karnataka Government the non-existence of the route in the published agreement by the Andhra Pradesh Government would amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the additional trips with additional vehicles. 7. Aggrieved by the order of the learned Chief Justice, respondents 6, 8 and 10 have brought up the present appeals. We have heard Sri M. Pangaswamy, learned counsel for the appellant KSRTC in Writ Appeal No. 514 of 1983; Sri J. Srinivasalu, learned counsel for the appellant in Writ Appeal No. 522 of 1983 and Sri V.Krishnamurthi learned senior counsel for appellant in Writ Appeal. No. 523 of 1983. Sri S. G. Sundaraswami learned counsel appeared for the petitioner Pungappa who is arrayed as common respondent No. 2 in all the three appeals and addressed arguments. Sri Mandappa, learned Government Advocate for the 'STA' made available the records at the hearing. We have been taken through the records of the case, the order of the 'STA' as well as that of the learned Chief Justice. 8. The contentions urged in support of these appeals by learned counsel for the appellants admit of being formulated thus: Point (a) : That in view of the existence of an equally efficacious alternative remedy of appeal under S. 64 (1) (a) of the 'Act', petitioner should not be permitted to invoke the extraordinary jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s contention. It is also true that in the matter of a petition for mandamus the position in regard to the existence of an alternative remedy as a ground for declining relief is stricter and more exacting than in the case of certiorari. The frame of the petition and the pleadings therein might not be very elegant and appropriately worded. But the petition read as a whole would indicate that petitioner was aggrieved by what, according to him, was a quasi-judicial decision rejecting petitioner's application in a manner and on grounds which according to petitioner, vitiated it. The prayer in effect, was to have that quasi-judicial decision declared illegal and improper . In our opinion, the refusal of the 'STA' to consider the application of the petitioner dehors the inter-State agreement on the grounds set out in the order would show that there is a failure to exercise jurisdiction vested on it besides constitution an error of law apparent on the face of the record. Even where an equally efficacious alternative remedy exists, where, however, fundamental rights are effected where rules of natural justice are violated, or where there is a failure on the part of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order that this contention is Put and appreciated in its true perspective, a reference to some statutory provisions is necessary. Section 63 (1) of the 'Act' provides: Except as may be otherwise Prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned : * * * (provisos omitted as unnecessary) Section 63 (3) says : The provisions of this Chapter relating to the grant, revocation and suspension of permits shall apply to the grant, revocation and suspension of countersignatures of permits: Provided that it should not be necessary to follow the procedure laid down in S. 57 for the grant of countersignatures of permits, where the permits granted in any one State are required to be countersigned by the STA of mother State or by the RTA Concerned as a result of any agreement arrived at between the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of this statement is the particular duty enjoined upon the Government of Andhra Pradesh under S. 63 (3-B), as the statement relates to routes respective which permits are required to be countersigned by the authorities in Andhra Pradesh. Sri Rangaswamy contends that both the existence and the terms of an inter-State agreement are to be gathered only in the manner provided for by sub-secs. (3-A and 3-B). Sub-section (3-A) prescribes the mandatory conditions precedent for the formation of an inter-State agreement, sub-section (3-B) prescribes the mandatory requirements which constitute conditions precedent for its enforceability. Sri Rangaswamy's contortion is that in the present case so far as inter-State route 153 is concerned neither of the statutory conditions precedent under sub-s (3-A) and (3-B) are shown to have been complied with. He contended that if an inter State agreement is reached after due compliance with the requirements of sub-section (3-A) even that, by itself, Would not be sufficient to impart enforceability to the agreement unless the requirements of sub-section (3-B), which he claimed were mandatory, were also complied with. Each of the contracting S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Section. Though it is the duty of the State to publish it in the official Gazette, it would not follow, that the STA shall not give effect to it. It is clearly stated in S. 63 (3-B) that the STA of the States concerned shill give effect to it. Hence, it is improper on the part of the STA of Karnataka to reject the application of the petitioner when the agreement is published in Karnataka that merely on the around that corresponding entry is not (sic) found in the Andhra Gazette: (Underlining supplied) Sri Rangaswamy says that the above statement of the learned Chief Justice shows that his Lordship was of the view that the agreement in its entirety was required under sub-section (3-B) to be published by each of the States and that if one State had published the agreement in its entirety and in the publication of the other State there was an omission in regard to a particular entry that should not be allowed to be made much of. 11. Sri S. G. Sundaraswamy learned counsel for the petitioner suggested that while dealing with the scope of sub-sections (3-A) and (3-B) we should not miss the relevance and purposes of Section. 63. Sri Sundaraswami says that S. 63 deals with gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the inter-State routes reserved for stage carriage operators of Karnataka State. It is in this background that the significance of the omission to mention this route in the publication effected under sub-section (3-B) by the Andhra Pradesh State assumes added importance and significance. 13. We may here dispose of the contention of Sri Sundaraswami that noncompliance of the requirements of S. 63 (3-B) should be confined only to the context of grant of counter-signature. In other words what the learned counsel says is that even if as a result of want of compliance with sub-section (3-B), it is to be held that there is no inter-State agreement covering this route at Sl. No. 153, the absence of such agreement is to be taken note of only in the matter of grant of counter-signature and not of grant of -permits or variations in their conditions. We do not think we can accept this argument, Proviso to sub-section 63 (3) deals with the effect of the existence of such agreements and sub-secs. (3-A) and (3-B) relate to the statutory requirements of such agreements. Though S. 63 deals with counter-signature of permits sub-secs. (3-A) and (3-B) deal with the manner in which inter-Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced a plain reading of sub-section (3-B) shows that Part 'A' of the Appendix is not what is required by sub-section (3-B) to be published by the Karnataka State. There was no other material on record before the 'STA' to prove the existence of the agreement covering this route. Admittedly, the publication in its Gazette by the Andhra State of the Inter-State routes, permits respecting which had to be counter-signed by the authorities of that State, did not contact this route. On the material placed on record, it is not possible to say that the existence of the inter-State agreement covering this route is at all established. On this short ground alone apart altogether from the question whether requirements of S. 63 (3-B) are mandatory or not - this route at Sl. No. 153 cannot be said to be a route covered by an inter-State agreement. Even otherwise, the contention of Sri Sundaraswamy that sub-section (3-B) is merely directory is not an acceptable one. Indeed, sub-secs. (3-A) and (3-B) were introduced into the 'Act' by Act No. 56 of 1969. These amendments were envisaged in Cls. 29 (c) and (d) of the Amending Bill. In the notes of clauses on these two provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawford on Construction of Statutes, 1940 Edn. Art. 261). Supreme Court in Pratap Singh v. Krishna Gupta, [1955]2SCR1029 : We deprecate this tendency towards technicality. it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice ensues; and when the Legislature does not itself state which is which, Judges must determine the matter and exercising a nice discrimination sort out one class from the other along broad-based, commonsense lines. (Underlining supplied) In a task such as this viz., courts cannot safely go further than that in each case, it must look to the subject-matter, consider the importance of the provision that has been disregarded and the relevance of that provision to the general objective intended to be secured by the Act. The language is not always a sure index. The provision may be directory in form, but mandatory in substance. Some provisions in a statute may be mandatory some others merely directory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casion, summon- the original agreement or require the parties before them to establish the terms of agreement by independent evidence. This is the important purpose sub-section (3-B) seeks to serve. Then again the latter part of sub-section (3-B) provides: and the State Transport Authority of the State and the Regional Trans port Authority concerned shall give effect to it. The conjunction 'and', in our opinion, introduces the idea of a sequence of events and connotes that the obligation to give effect to the agreement follows, and does not proceed, in the contemplated publication. There is, in our opinion, force in the argument of Sri Rangaswamy that the view that the learned Chief Justice took was guided by what his Lordship took to be the requirement of sub-section (3-B) that it required the State of Karnataka to publish in the Gazette the agreement in its entirety. With respect, we are unable to agree with the reasoning of and conclusion reached by the learned Chief Justice. The proper view to take, in our opinion, is that unless the inter-State routes respecting which permits are to be countersigned by the authorities in Andhra Pradesh are included in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : all applications made under the Act before the same transport authority for grant of fresh SCPs. or variation of conditions of an SCP that will have the effect of granting a fresh SCP for the same route or substantially the same route that are ripe for consideration in the very nature of things and to do substantial justice to all should be considered together by that transport authority. As to what decision the transport authority will take on a consideration of all those applications, which cannot also be predicted before consideration, is a matter for the transport authority to decide after consideration of all the applications together. On a consideration of all or some of the applications only, the transport authority may grant a fresh permit only or may grant a variation only. But without a consideration of all the rival applications that are ripe for consideration, the authority would be virtually rejecting the applications of the persons whose applications are not considered and will be occasioning grave failure of justice to such an applicant. (Vide para 9) (Underlining supplied) After saying this, the learned Judge proceeded to issue directions for clubbing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the applications together. The second reason, somewhat of an extraordinary one at that, is that a certified copy of the order in W. P 34927/82 was not filed before the 'STA'. Apart from the submission of Shri Rangaswamy that he had appeared for the parties in those proceedings and did in fact file a copy of the order of Puttaswamy, J. in W. P. No. 34927/82 before the Chairman of the STA well before the date of its order, it is seen that Puttaswamy, J. himself in Para 16 of his order directed Sri pandurangaswamy, learned High Court Government Pleader, who appeared for the 'STA' in that writ petition, to communicate the result of the writ petition to the 'STA' forthwith. Pursuantly on 14/15-10-1982, Sri Pandurangaswamy, learned High Court Government Pleader, addressed a letter to the Secretary of the 'STA'. The letter reads: Sub : Writ Petitions Nos. 34927, 27330 and 27331 of 1982 on the file of the High Court of Karnataka - K. G. Jagannath and others v. The Karnataka State Transport Authority, Bangalore, and others. The above writ petitions came up for hearing in 'B' group on 14-10-1982. The Court has finally taken the matter for hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the situation to say that the grant of application of petitioner Pungappa would not come in the way of grant of prayers made by other applicants such as respondents 6, 8 and 10. It might come in the way; or it might not. In such a situation the question would equally well rise as to whose application is to be taken up first. It is, therefore, not possible to subscribe to the condition of Sri Sundaraswami that there would be no legal infirmity stemming, from a consideration of the application of petitioner Pungappa in isolation. The nonobservance of the rules of natural justices would by itself, without more, vitiate the proceedings as such non-observance is itself an injury and no further injury need be demonstrated. The Supreme Court in S. L. Kapok v. Jagmohan, [1981]1SCR746 said: 24 ............In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is it self prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary ........... 22. The positive direction issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad disposed of the matter on a preliminary ground of maintainability and had declined to examine the other contentions urged by the parties. Sri Rangaswamy relied upon several authorities in regard to the scope of relief permissible under proceedings under Art. 226 of the Constitution. In Halsbury's Laws of England, IV Edn., Vol. I, Para 108, it is stated : 108. Licensing Justices. Upon the same principle a mandamus will issue to licensing it unless who have failed to hear and determine according to law an application in respect of a licence, commanding them to hear and determine an application for the grant, renewal, or transfer of a licence, or in respect of the compensation payable on the non renewal of an old licence; but as a general rule no mandamus will go commanding the actual grant, renewal, or transfer .......... (Underlining supplied) In Para 113 it is stated : 113. Where discretion has been given and exercised. In cases where application made for the issue of an order of mandamus to tribunals of a judicial character, the order will not issue for the purpose of dictating to them in what manner they are to decide. Their duty being only to hear and determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiorari' as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges ......... (Underlining supplied) Reiterating these principles Supreme Court in Mahaboob Sheriff Sons v. Mysore S. T. Authority, [1960]2SCR146 : (11) The next question is what order should be passed in the circumstances. This depends on the exigencies of each case, for this Court is not confined by the technical rules relating to issue of writs by the English Courts......... (Underlining supplied) Again in P. J. Irani v. State of Madras, [1962]2SCR169 , Supreme Court affirmed these principles : (14 ............We do not consider that immunity from interference by the Courts could be sought for orders which are plainly ultra vires merely, because they were passed, bona fide in the sense of being without indirect motive. Particularly so when the rower of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have aggravated the malady - confusion, agitation, paralysis. The root of the grievance and the fruit of the writ are not individual but collective and while the 'adversary system' makes the Judge a mere umpire, traditionally, speaking, the community orientation of the judicial function, so desirable in the Third World remedial Jurisprudence, transforms the court's power into affirmative structuring of readdress so as to make it personally meaningful and socially relevant. Frustration of invalidity is quart of the judicial fulfilment of legality is complementary. This principle of affirmative action is within our jurisdiction under Art. 136 and Art. 32 and we think the present cases deserve its exercises. (vide para 40). (Underlining supplied) In Shiva Shanker Dal Mills v. State of Haryana, [1980]1SCR1170 the same learned judge said : Article 226 grants an extraordinary remedy which is essentially discretionary although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order such as public interest dictates and equity projects........... (vide para 6) (Underlining supplied) In Gujarat Steel Tubes Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer is unsheathed to grant final relief without necessary recourses to a remand. What the tribunal may, in Its discretion, do the High Court too, under Art. 226 can if facts compel, do... (vide para 146) These authoritative, pronouncement should serve to lay this controversy to rest. The existence of the power need not be put in doubt. Where an extraordinary situation arises calling for an extraordinary remedy, the Court need not fold up its hands and withhold reground alone of some limitations imposed by conventional and technical Rules of, English practice and procedure. But, at the same time, exceptional situations apart, the normal and conventional preface in the exercise of this extraordinary jurisdiction under Article 226 is merely to quash the impugn ed proceedings, where the exercise of a discretionary power by an authority is vitiated by procedural errors, and to do remit the matter for consideration afresh by the, authority in the light of the observations made and guidelines given by the Court. That the High Court can. in exercise of power under Art. 226, do what the authority vested with the discretionary power could it self have done does not mean.-that that sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in proceedings under Art. 226. The normal and conventional limitations of the scope of interference in judicial review is illustrated in the case of Chief Constable v. Evans (1992) 1 WLR 1155 thus : Since the range of authorities, and the circumstances of the use of their power, almost infinitely various, it is of course unwise to lay down rules for the application of the remedy which appear to be of universal validity in every type of case. But it is important to remember in every case that the purpose of the remedies is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law. There are passages in the judgment of Lord Denning M. R. (and perhaps in the other judgments of the Court of Appeal) in the instant case and quoted by my noble and learned friend which might be read as giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider the application outside the agreement. The reassessing of the 'STA' in this behalf is this : In the normal circumstances, where the route has not been included and not covered by the agreements published by the two States, permit could have perhaps been considered for grant on double point taxation. But unfortunately in this particular case since the route has already been published in the list published by Karnataka and has not been published by the Andhra Pradesh Government the issue takes a different shape altogether ..... Therefore, unless certain amendments or rectifications are made in the inter-State agreement in accordance with the provisions of the MV Act, 1939, under S.63, we do not find it necessary to grant the variation as applied since such a grant would be outside the scope of the agreement. This reasoning is untenable. The 'STA' rejects the consideration of petitioner's application under the agreement on the ground that there is, according to it no inter-State agreement covering the inter-State route under Entry 153 and at the same it also, strangely, declines to consider the application outside the agreement on the ground that there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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