Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
SHARIF AHMED & ORS.
Vs.
RESPONDENT:
REGIONAL TRANSPORT AUTHORITY, MEERUT & ORS.
DATE OF JUDGMENT31/10/1977
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
GOSWAMI, P.K.
DESAI, D.A.
CITATION:
1978 AIR 47 1978 SCR (1) 749
1977 SCC (4) 551
CITATOR INFO :
F 1980 SC 258 (10)
E 1980 SC 962 (6,21,23,34,44,67,103,105,114)
F 1983 SC 67 (5)
RF 1992 SC 604 (97)
ACT:
Motor Vehicles (U.P. Amendment) Act, 1972-Grant of stage-
carriage permits by Appellate Tribunal-Retrospective change
in law before actual issuance of permits, whether nullifies
the grant-Appeal lies only against grant, and not issuance
of permits.
HEADNOTE:
In 1972, purporting to do away with the limit on the grant
of stage-carriage permits, imposed by s. 47(c) of the Motor
Vehicles Act, 1939, the U. P. Government promulgated the
U.P. Motor Vehicles Amendment Ordinance (No. 9 of 1972)
replaced by the Motor Vehicles (U.P. Amendment) Act, 1972.
Under s. 43-A(2) of the amended Act the State Government
issued a notification dated March 30, 1972, directing the
Transport Authorities to grant stage carriage permits to all
eligible applicants. The constitutional validity of the
amended law and the notification was upheld by the Supreme
Court in Hans Raj Kehar & Ors. V. State of U.P. & Ors.
[1975] 2 SCR 916. The State transport Appellate Tribunal,
thereafter, allowed fifty pending appeals and granted
permits to ill the appellants. Pursuant to the Appellate
Tribunal’s order of grant, the Regional Transport Authority
was to issue the grantees permits, on the fulfilment of cer-
tain conditions within a given time. The conditions were
duly fulfilled but the actual issue of permits was kept
pending due to the Appellate Tribunal’s order being
challenged through a writ petition in the High Court. The
petition was dismissed, but meanwhile the law was
retrospectively amended.
A question arose before this Court whether the retrospective
change in law had nullified the Appellate Tribunal’s order?
Allowing the appeal the Court.
HELD : (1) The applications for grant of permits were
finally disposed of, and permits were granted by the order
of the Appellate Tribunal, what remained pending was a mere
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
ministerial act of issuing the permits, to be performed by
the Regional Transport Authority or, its delegate, on the
applicants’ complying with the terms of the order, within
the time granted by the Appellate Tribunal. The order of
the Tribunal, when made, was legal and with jurisdiction,
The retrospective change in law had not the effect of
nullifying the order. [766 G-H]
The Commissioner of Income-tax, Bihar & Orissa v. Maharaja
Pratap Singh Bahadur of Gidhaur [1961] 2 SCR 760,
distinguished.
Obiter dictum :
Retrospective change in law cannot justify allowing the
wrong to continue. The injustice done must be rectified.
The issuance of a writ of mandamus would not have the effect
of directing the Regional Transport Authority to do
something contrary to the present law, but of merely asking
it to obey the valid order of the Appellate Tribunal which
has not been rendered void on any ground Whatsoever. [768 E-
F]
’Judicial Review of Administrative Action’ 3rd Edn.p. 59 by
S. A.de Smith, referred to.
(2) An appeal u/s. 64 of the Motor Vehicles Act, 1939, lies
only against the grant of permit, and not against the order
issuing a permit made in pursuance of the order granting the
permit. Issuance of the permit is only a ministerial act
necessarily following the grant of permit. [765 G]
Kundur Rudrappa v. The Mysore Revenue Appellate Tribunal and
Ors. [1976] 1 S.C.R. 188, followed.
762
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1214 and
1292 of 1977.
Appeals by Special Leave from the Judgment and Order dated
31-3-1976 of the Allahabad High Court in Second Appeal Nos.
64 and 63 of 1976 respectively and
Civil Appeal No. 1293 of 1977
Appeal by Special Leave from the Judgment and Order dated
26-4-76 of the Allahabad High Court in Civil Misc. Writ No.
652/76 and
Civil Appeal No. 1342 of 1977
Appeal by Special Leave from the Judgment and Order dated
29-4-77 of the Allahabad High Court in Civil Misc. Writ No.
11466/ 75 and
Civil Appeal Nos. 1487, 1341 and 1412 of 1977
Appeals by Special Leave from the Judgment and Order dated
6-10-76 of the Allahabad High Court in S.A. Nos. 160, 182 &
183/ 76.
A. K. Sen (in CA 1214/77) M/s. J. P. Goyal & Shreepal
Singh for the Appellants in CA Nos. 1214, 1292, 1293 &
1342/77.
S. N. Kacker, Sol. Genl., (in CA 1214/77) O. P. Rana & M.
V. Goswami, Advs. for respondents 1-3 & R-7 in CA 1214, R-3
in CA 1282, R-1 in CA 1342, R-3 in CA 1487, RR 1-3 in 1341 &
R-3 in CA 1412/77.
B. Sen, (Oper. R. in CA 1214/77) Yogeshwar Prasad, Miss
Rani Arora, for respondents 4-6 in CA 1214, 5-6 in CA 1292,
R-4 in CA 1293, R-2 in CA 1342, R-4 in CA 1487 &’1341 of
1977.
Miss Rani Arora, for R-4 in CA 1412/77.
S. Markandeya, Adv. and Miss Chitra Bhadri, for the
Appellant in CA 1487, 1341 & 1412/77.
M/s. R. K. Garg, S. C. Agarwala & V. J. Francis, Advs. for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
Caveator in CA 1293/77.
The, Judgment of the Court was delivered by
UNTWALIA, J.-In this batch of seven appeals by special leave
the points involved are identical. It is a glaring example
of unnecessary litigation between the various stage carriage
operators, which could have been avoided if the State
Government of Uttar Pradesh would not have come out with
varying laws and oscillating policies. The facts of all the
appeals are similar and common except in regard to
763
the parties, routes in question, and some other
consequential details.
We proceed to- state the facts from Civil Appeal No. 1214 of
1977 only. Under section 47(3) of the Motor Vehicles Act,
1939-hereinafter to be referred to as the Central Act the
Regional Transport Authority, Meerut had limited the number
of stage carriage permits to be thirty only for the, route
Meerut-Rohta-Sinali-Baraut. In or about the year 1971 an
advertisement was made calling for the applications to fill
up eight vacancies, as twenty-two permits out of the limit
of thirty having been already granted were operative and in
force. In October, 1971 the Regional Transport Authority
granted eight permits to the respondents in one appeal or
the other. Fifty applicants who were not granted permits by
the Regional Transport Authority filed appeals before the
State Transport Appellate Tribunal (for brevity,
hereinafter, the Appellate Tribunal) under section 64 of the
Central Act. While the said appeals were pending, The U.P.
Motor Vehicles Amendment ordinance No. 9 of 1972 was
promulgated on March 16, 1972. It was. replaced by The
Motor Vehicles (Uttar Pradesh Amendment) Act, 1972-U.P. Act
No. 25 of 1972-hereinafter called the U.P. Act of 1972. By
the Ordinance followed by the Act aforesaid, section 43A was
inserted in the Central Act after ,section 43 authorising
the State Government to "issue such directions of a general
character as it may consider necessary or expedient in the
public interest in respect of any matter relating to road
transport" to the various Transport Authorities. The object
of the Act was to do away with the limit on the number of
permits to be granted for stage carriages. Sub-section(2)
of section 43-A, in particular, empowered the State
Government in public interest to issue a direction by a
notification in the Gazzette to grant permits to all
eligible applicants except in respect of routes or areas for
which schemes had been published under Section 68C of the
Central Act. Some amendments were brought about in section
47 of the Central Act. But for the purposes of these
appeals the one to be pin-pointed is the deletion of sub-
section (3) from section 47, the consequence of which was to
delimit the number of permits to be granted for a particular
route. On March 30, 1972, a notification was issued by the
State Government under Section 43-A(2) of the U.P. Act of
1972 directing the Transport Authorities to grant stage
carriage permits to all the eligible applicants. Some of
the stage carriage permit holders on various routes in U.P.,
including some of the respondents, challenged the validity
of the U.P. Ordinance followed by the U.P. Act of 1972 and
the notification dated March 30, 1972 by filing writ
petitions in the Allahabad High Court. The High Court
dismissed their writ petitions. They came up in appeal to
this Court. The appeals were dismissed and the
constitutional validity of the impugned law and the
notification was upheld by a Bench of four learned Judges
including one of us (Goswami J.). The decision of this Court
is reported in Hans Raj Kehar & Ors. v. The State of U.P.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
and Ors. (1) The decision of this Court was handed down on
December 4, 1974. The appeals remained pending before the
Appellate Tribunal because of
(1) [1975]2S.C.R. 916=A.T.R. 1975 S.C. 389.
12-951 SCI/77
764
this first round of litigation. Eventually the appeals were
allowed on February 19, 1975 by the Appellate Tribunal and
each one of the fifty applicants was granted one permit over
and above the eight already granted by the Regional
Transport Authority. Pursuant to, the order of grant made
by the Appellate Tribunal, permits, were to be issued by the
Regional Transport Authority if the grantee produced a fit
vehicle, meaning there by roadworthy vehicle registered in
his name by the 31st March, 1975 and if by the said date he
filed an affidavit sworn by him before the Regional
Transport Authority to the effect that he had not been
convicted of any Criminal offence under the Indian Penal
Code during the preceding five years. The Appellate
Tribunal, in its order, had further made it clear that the
time fixed by it for the implementation of the order of
grant was under no circumstances to be extended and if any
of the applicants failed to comply with it, sanction of the
permit in favour of the defaulting applicant was to, stand
automatically revoked. The appellants, however, complied
with the order and fulfilled the conditions of the, grant
within time. But before permits could be actually issued,
another round of litigation started at the instance of Rama
Kant Ahluwalia and others who had been granted eight permits
by the Regional Transport Authority as per its Resolution
pissed on October 29, 1971. ’They challenged the order of
the Appellate Tribunal by filing a writ petition in the High
Court which was summarily dismissed on February 27, 1975.
Three more writ petitions filed by some other operators
challenging the very same order of the Appellate Tribunal
were also dismissed after hearing on September 10, 1975. It
may be stated here at this stage that permits were not
actually issued even though the High Court had vacated the
stay orders sometime in June or July, 1975.
After dismissal of the writ petitions by the High Court,
came another notification issued by the State Government on
September 24, 1975 under section 43-A of the U.P. Act of
1972 proposing to change their policy of granting permits to
all eligible applicants. In the main, we shall be concerned
in these appeals with the true meaning and effect of this
notification the relevant portions of which will be quoted
hereinafter. The notification of September 24, 1975 was
considered by this RegionalTransport Authority as putting
a bar to the issuance of the permits. The appellants,
therefore, filed Civil Miscellaneous Writ Petition No. 12238
of 1975 in the High Court challenging the notification as
also the U.P. Ordinance 35 of 1975 which had been promul-
gated in the meantime on November 12, 1975. They prayed for
an order or a writ of mandamus directing the Regional Trans
port Authority to issue the permits pursuant to the order
dated 19.2.1975 of the, Appellate Tribunal. The writ
petition was dismissed by a learned single Judge of the High
Court on February 12, 1976. The appellants went up in
appeal under the letters patent. The, appeals were dis-
missed by a Division Bench on March 31, 1976. Hence these
appeals.
U.P. Ordinance 35 of 1975 followed by Ordinance 9 of 1976
promulgated on February 16, 1976 was replaced by U. P.
Amendment Act 15 of 1976 which came into force on May 1,
1976. Although the Division Bench of the High Court has not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
rested its judgment, and in our opinion rightly, upon the
Ordinance and U.P. Act of 1976, the
765
learned single Judge had done so. We shall briefly refer to
the change of law brought about by the said Ordinance and
the Act because the learned Solicitor General appearing for
the State of Uttar Pradesh endeavoured to make some point
out of it. So did the other counsel appearing for the
operator respondents.
The main question, however, which falls for our
determination in these appeals is as to whether the Regional
Transport Authority failed to do its legal duty in refusing
to issue the permits pursuant to the order of the Appellate
Tribunal in view of the notification of the State Government
issued on September 24, 1975 under section 43-A of the U.P.
Act of 1972 and whether the High Court was right in not
granting the writ asked for by the appellants.
The, Appellate Tribunal in its order dated the 19th
February, 1975 following the notification of the State
Government issued on March 30, 1972 had ordered the grant of
permits to all the applicants. The relevant words of the
order are as follows :-
"It would, therefore, appear to be reasonable
that these appellants may also be granted one
permit each on this route, if they can produce
a fit vehicle within the given time and they
can satisfy the RTA as to their antecedents,
by means of an affidavit."
All the fifty appeals were allowed. The order of the
Regional Transport Authority was set aside and the operative
portion of the order was made in terms as mentioned below :-
"Without disturbing the grant of permit in
favour of the respondents, these 50 appellants
will also be granted one regular stage
carriage permit each. on this route, provided
they produce a fit vehicle duly registered in
their own name by 31st March, 1975, and during
this period they also rile their own personal
affidavits before the RTA to this effect that
they have not been convicted of any criminal
offence under I.P.C. during the last 5 years.
This time for Placing the vehicle and for
filing the affidavits, will not be extended on
any grounds, and if the compliance, as above
is not made in the given time, the sanction of
the permit in favour of the defaulting
appellants will automatically stand revoked."
In Kundur Rudrappa v. The Mysore Revenue Appellate Tribunal
& Ors(1). It was held by a Division Bench of this Court, to
which both of us were parties, that appeal under section 64
of the Central Act lies only against the grant of permit and
not against the order issuing a permit.made in pursuance of
the order granting the permit. "Issuance of the permit is
only a ministerial act necessarily following the grant of
the permit" was the distinction pointed out at page 190.
Then came the change of policy notification involving the
parties in further litigation. The Preamble of this
notification dated September 24, 1975 states that the State
Government is of opinion that the policy of granting such
permits to all eligible applicants requires
(1) [1976] 1 S.C.R. 188.
766
review and since such review was likely to take sometime in
the meantime it was necessary to stay "the disposal of all
pending applications for permits or entertainment of fresh
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
applications." The notification dated the 30th March, 1972
was rescinded with immediate effect by clause (1) and
thereafter clause (2) provided :
"The consideration of applications for stage
carriage permits pending with any Transport
Authority shall stand postponed until further
directions are issued in this behalf by the
State Government."
The High Court thought that since permits has not been
issued, they could not be issued because, of the notifica-
tion dated September 24, 1975. Although not in form, in
substance, the High Court thought that the effect of the
order of the Appellate Tribunal was to remand the cases to
the Regional Transport Authority for granting permits to the
appellants on being satisfied that the vehicles put by them
were roadworthy and that their antecedents were not
undesirable. In our judgment the High Court has fallen into
an error in this regard. AR the parties were agreed before
us that clause (2) of the notification had not the effect of
recalling, revoking or cancelling the permits which had been
granted and issued pursuant to the notification dated
30.3.1972. It was, also, beyond any debate or doubt that if
the applications for the grant of stage carriage permits
were pending with any Transport Authority when the
notification was issued it stood postponed until further
directions were issued in this behalf by the State
Government. But the scope for litigation and argument in
these cases cropped up because they did not clearly and
precisely fall in one line or the other. If on the special
facts of these cases consideration of the applications could
be taken to be pending with any Transport Authority, then
they bad to remain pending until further directions were
issued. But if, on the other hand, on a correct
appreciation of the legal position the applications had been
finally disposed of by the order of the Appellate Tribunal
and they were not pending for any consideration then they
did not stand postponed and permits had to be issued
pursuant to the order of the Appellate Tribunal. The
Regional Transport Authority had no discretion or power in
the matter to dispose of the applications one way or the
other.
To our mind the problem does not present much difficulty.
The applications filed by the appellants for grant of
permits to them were rejected by the Regional Transport
Authority in October, 1971. They were finally disposed of
and permits were granted to them by the order of the
Appellate Tribunal made on 19-2-1975. The consideration of
the applications for grant of permits was no longer pending
after the said order. What remained pending was a mere
ministerial act to be performed by the Regional Transport
Authority or by any delegate of that authority in accordance
with Rule 44A of the U.P. Motor Vehicles Rules, 1940.
According to the terms of the order of the Appellate
Tribunal, nothing substantial or unsubstantial was to be
decided by the Regional Transport Authority in connection
with the grant of permits. The Regional Transport
767
Authority could not say that it refused to grant the permit
on one ground or the other. What was left to be done by it
was only to find out whether a particular applicant had
complied with the terms of the order and within the time
granted by the Appellate Tribunal. If the terms were not
complied with by the specified time the grant stood revoked
not because the Regional Transport Authority could revoke it
but because the Appellate Tribunal had specified it to be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
so. As already stated, all the applicants had complied with
the terms of the Appellate order within time, actual
issuance of the permits could not be done because of the
stay orders made by the High Court in the earlier writ
petitions. In sum and substance, therefore, the appellants
became entitled to the issuance of the permits in their
favour by 31st March, 1975. It is difficult to understand
as to in what sense their applications remained pending
after 31st March, 1975 and how did they remain pending even
in the remotest sense of the term after the vacation of the
stay order by the High Court and the dismissal of the writ
petitions on the 10th of September, 1975. When the
notification dated September 24, 1975 was issued the
position was absolutely clear that nothing in any sense was
pending except that in the physical sense a paper containing
the permit was not actually issued. Clause (2) of the said
notification was not meant to cover nor did it cover a case
of this kind. The Regional Transport Authority failed in
its legal duty in not implementing the order of the
Appellate Tribunal and issuing the permits as a result
thereof. It was, therefore, just. and proper to grant the
writ of mandamus as asked for by the appellants.
We may now briefly deal with the additional points urged by
the Solicitor General and M/s B. Sen and Yogeshwar Prasad.
For the purpose of appreciating some of those points it
would suffice to refer to the provisions of U.P. Act 15 of
1976 which were almost in identical terms to the two
Ordinances which had preceded it. Section 21 of this Act
amended section 43-A with retrospective effect. The effect
of this was to bring into force section 47(3) of the Central
Act and with retrospective effect. Sub-section (3) of
section 21, however, provided : "Any direction under sub-
section (1) may be issued with retrospective effect." Then
sub-section (5) is in the following terms
"Where any direction is issued under sub-
section (1)
with retrospective effect then-
(a) any Transport Authority or the State
Transport Appellate Tribunal may review any
order passed earlier by it with a view to
making it conform to such directions, and may
for that purpose cancel any permit already
issued ;
(b) Any Transport Authority may apply to the
High Court for review of any order passed by
such Court earlier with a view to enabling
such Authority to comply with such direction."
The argument on behalf of the State was that the order of
the Appellate Tribunal became illegal as being against the
law which
768
was by a legal fiction, made to come into force by its
retroactive action when the said order was passed. Reliance
was placed upon the decision of this Court in The
Commissioner of Income Tax, Bihar & Orissa v. Maharaja
Pratap Singh Bahadur of Gidhaur(1). In our opinion the
argument is, devoid of any substance. There was nothing in
the Ordinance or the U.P. Act of 1976 to make the order of
the Tribunal illegal. The order when made was legal and
with jurisdiction. The retrospective change in law had not
the effect of nullifying the order. It is to be further
emphasised that if the order was complete and final, in the
sense we have explained above, then two formalities had to
be gone into in order to get rid of that order. Firstly, a
special direction had to be issued under ’sub-section (1).
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
No such direction issued was brought to our notice.
Secondly, the procedure of review had to be followed as
provided for in sub-section (5) of section 21 of the
Amending Act of 1976. In Maharaja Pratap Singh’s case
(supra) the amendment of the law with retrospective effect
had made the proceeding void ab initio. The law was retro-
spectively amended during the pendency of the appeals before
the Appellate Assistant Commissioner. Any order made in
such a proceeding was, therefore, held to be void. The
ratio of that case is wholly, inapplicable for nullifying
the order of the Appellate Tribunal.
It was then submitted by learned counsel for the parties
that because of the change in law in 1976, this Court should
not for the sake of justice allow these appeals filed on
grant of special leave under Article 136 of the Constitution
and issue a writ of mandamus which will have the effect of
directing the Regional Transport Authority to do something
contrary to the present law. In our opinion, there is no
substance in this point either. The High Court refused to
issue the writ on a misapprehension of the correct position
in law and by misreading the order of the Appellate Tribunal
and the notification dated September 24, 1975.
Retrospective change in law brought about in 1976 cannot
justify allowing the wrong to continue. The injustice done
to the appellants must be rectified. The result of the writ
will not be tantamount to asking the Regional Transport
Authority to do something which will run contrary to section
47(3) or the proviso to section 57(3) of the Central Act.
It would be merely asking the Regional Transport Authority
to obey the valid order of the Appellate Tribunal which has
not been rendered void on any ground whatsoever.
Mr. A. K. Sen, learned counsel for the appellants drew our
attention to what S.A. de Smith has pointed out at page 59
of the third edition of his well-known treaty "Judicial
Review of Administrative Action" :-
"It may describe any duty, the discharge of
which involves no element of discretion or
independent judgment. Since an order of
mandamus will issue to compel the performance
of a ministerial act, and since, moreover,
wrongful refusal to carry out a ministerial
duty may give rise to
(1) [1961] 2 S.C.R. 760.
769
liability in tort, it is often of practical
importance to determine whether discretion is
present in the performance of a statutory
function. The cases on mandamus show,
however, that the presence of a minor
discretionary element is not enough to deter
the courts from characterising a function as
ministerial."
We think that the Regional Transport Authority, pursuant to
the order of the Appellate Tribunal, had merely to perform a
ministerial duty and the minor discretionary element given
to it for finding out whether the terms of the Appellate
Order had been complied with or not is not enough to deter
the Courts from characterising the function as ministerial.
On the facts and in the circumstances of this case by a writ
of mandamus the said authority must be directed to perform
its function.
For the reasons stated above,, we allow these appeals and
direct the Regional Transport Authority or Authorities, as
the case may be, to implement the orders of the Appellate
Tribunal, issue the permits to the appellants in all the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
cases. We would, however, Eke to make it clear that permits
were to be issued for a period of three years only.
Temporary permits were issued to the appellants or some of
them from time to time in pursuance of the interim order
made either by the High Court or by this Court. The total
period of such temporary permits in the case of any of the
appellants must be deducted and adjusted as in the present
situation of the law it would be just to do so, from the
period of three years. In the circumstances, we make no
order as to costs in any of the appeals.
M.R. Appeals allowed.
770