G RANGA REDDI Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This Appeal is from the order of Gopal Rao Ekbote J in Writ Petition NO. 494 of 1961 whereby he refused to remove on Certiorari the order of the Government of Andhra Pradesh in G. O. Ms. No. 765. Home (Transport 11) Department dated reversing the order of the State Transport Authority dated 1-8-1960 and restoring the order of the Regional Transport Authority dated 28-8-1959, granting one state carriage permit on the route Ellampeta to Cuddapah to one Khassim Saheb, respondent No. 4 herein. The facts are few and may be shortly dated. In response to a notification issued by the Regional Transport Authority, Cuddapah calling for applications for grant of one stage carriage permit on the route Ellampeta to Cuddapah, 12 persons including the appellant, submitted their applications. The appellant was the 7th applicant Regional Transport Authority consisting of 1. Sri P. L. Sivaram, I. A. S., Collector and Chairman, R. T. A., Cuddapah 2 Sri P. N. Rama. chandrareddi, B. A., Superintendent of Police and Vice Chairman, R. T. A., Cuddapah and 3, Sri R. Orabhala, B. E., A. M. I. E., Divisional Engineer (H) and Member, R. T. A. Cuddapah (all officials) at the meeting held on 28/08/1959, considered all the applications in the light of the provisions of Section 47 of the Motor Vehicles Act and Rule 153-B and granted permit to the 4th respondent, Khasim Sahib. While assessing the relative merits of the applicants the authority was of opinion that though both the appellant and the 4th respondent were similarly circumstanced so far as their marks are concerned as both of them obtained six marks each, which are the highest the case of the 4th respondent for grant of permit was to be preferred as his history sheet is not so bad as that of the appellant. The appellant and five others then went in appeal to the State Transport Authority under Section 64 of the Motor Vehicles Act. 1939 (hereinafter referred to as the Act), Sri N. Ramesan, I. A. S., the Chairman of the State Transport Authority after considering the case on merits came to the conclusion that the 4th respondent was entitled to only five marks as against six given by the Regional Transport Authority that in that case the appellant had the advantage of the largest number of marks to his credit and that as to completely eliminate him he was entitled to the permit in preference to all the other applicants. On this ground he reversed the order of the Regional Transport Authority and granted the permit to the appellant herein. Aggrieved by this, two of the applicants including the 4th respondent went in revision before the Government on 1-8-1960 and the Government on a consideration of the case on merits came to the conclusion that the appellant also could not get more than five marks and his history sheet was worst and so he cannot be preferred to Khassim Sahib. In this view of the matter they set aside the order of the State Transport Authority and restored that of the Regional Transport Authority. The appellant thereupon came to this Court praying for issuance of a Writ of Certiorari quashing the order of the Government of Andhra Pradesh on the main ground that the State Government had no jurisdiction to revise the order of the State Transport Authority in purported exercise of its powers under the Madras amendment of Section 64-A of the Motor Vehicles Act. It was urged that the Madras amendment of Section 64-A is inconsistent with and repugnant to Section 64-A as introduced by the Central Act 100 of 1956 and therefore, is hit by Art 254 of the Constitution of India, and that at any rate after the advent of Section 64-A as introduced by the Central Act, the Madras Amendment should be deemed to have automatically ceased to have effect. A further ground raised was that even as a Revisional authority the Government was not competent to interfere with the order except on an error. omission or irregularity that must have occasioned failure of justice. Evidently the appellate authoritys order suffered from no such defect. The order passed by the Government on that ground also was without jurisdiction. Further it was arbitrary and discriminatory.

(2.) These grounds did not commend to our learned brother who, on the authority of a Division Bench of this Court, decided that the Central Act did not take away the supervisory powers of the Government vested under Section 64-A and hence the State Government had undoubted jurisdiction to consider the propriety, justice and legality of the order passed by the State Transport Authority. The learned Judge further found that the order passed by the Government was manifestly under Section 64-A of the Act, and that the State Government, in exercising the discretion, has not gone wrong in anywise, that may necessitate interference by this Court. Thus he dismissed the writ petitions. Aggrieved by this order, the appellant were unsuccessfully raised in the Writ Petition have been reiterated in the Memorandum of appeal dated 10-2-64. During the pendency of the appeal, however, the appellant sought permission to raise a fresh ground bearing on the question of initial lack of jurisdiction of the Regional Transport Authority Cuddapah, as it was not properly constituted in accordance with Section 44 (2) of the Motor Vehicles Act for want of non-official element therein. The application for raising this ground was made on 3-9-64 and the other side was put on notice thereof. In this appeal the learned counsel for the respondent demurred that a point like this which was never made a ground of attack at any stage of the litigation should not be permitted to be taken at this stage. In this behalf the learned counsel Sri Babulu Reddi, invited our attention to various authorities which we will presently consider. The points which arise then for determination in this appeal are: 1. Whether the order passed by the Regional Transport Authority is invalid in law as the authority passing the same was not properly constituted in accordance with Section 44 (2) of the Act because of the absence of non-official element therein. 2. Whether such a ground can be permitted to be taken at this stage?

(3.) We take up the first point: Section 44 of the Act which is the relevant provision occurs in Chapter IV headed "Control of Transport Vehicles". As in case of some other provisions, this provision also has been subjected to certain amendments from time to time both by the Parliament and the State Legislature. The first sub-section of the said section authorises the State Government to constitute a State Transport Authority to exercise and discharge the powers and functions specified in Sub-section (3) and also the Regional Transport Authorities to exercise and discharge such functions as may be specified in the notification Sub-section (2) which is material for our purpose deals with the composition or constitution of such authorities. Section 44 (2) as originally enacted in the Motor Vehicles Act of 1939 reads thus: