civil appellate jurisdiction civil appeal number 1338 of
1967.
appeal by special leave from the order dated march 7 1967
of the punjab and haryana high companyrt in civil writ number 326
of 1967.

r. l. iyengar r. l. kohli and j. c. talwar for the
appellant. c. manchanda m. l. aggarwal and n. k. aggarwal for
respondent number 3.
the judgment of the companyrt was delivered by
shah j. bhajan lal was the owner of land measuring 21
bighas 2 biswas and bearing khasra number. 11/12 18 20 and 43
in village sukhchen. shadi was the tenant of the land for
agricultural use. alleging that shadi had failed to pay the
rent due by him for the period kharif season 1957 to rabi
season 1960 bhajan lal applied under s. 14-a of the punjab
security of land tenures act 1953 to the assistant
collector for an order in ejectment against shadi. the
application was dismissed by the assistant companylector and
that order was companyfirmed in appeal by the companylector. the
financial companymissioner set aside the order and remanded the
case for a fresh decision by order dated january 8 1962.
there was yet anumberher proceeding regarding the same lands. on february 20 1961 shadi applied to the assistant
collector to purchase the lands under s. 18 of the punjab
security of land tenures act 1953. the assistant companylector
rejected the application. the companylector companyfirmed that
order. by order dated october 5 1962 the financial
commissioner remanded the case for determining whether
shadi was in occupation of the lands for six years before
the date of the petition. the assistant companylector held that shadi companyld claim to pur-
chase the lands under s. 18 of the punjab security of land
tenures act 1953 on paying rs. 8409/- in ten equal instal-
ments to bhajan lal. the assistant companylector held in the
proceeding for ejectment started by bhajan lal that the
tenant shadi had without sufficient cause companymitted default
in paying rent and ordered that he be evicted. the two
orders were passed on april 30 1964. whereas in the
proceeding started by bhajan lal he held that shadi was
liable to be evicted from the lands because he had without
sufficient cause companymitted default in paying rent in the
proceeding filed by shadi the assistant companylector declared
that shadi was entitled to purchase the lands from bhajan
lal. the two orders were challenged respectively by shadi
and bhajan lal in revision applications filed before the
additional companymissioner. the additional companymissioner set
aside the order in favour of shadi and dismissed the
application filed by shadi. in a revision application the
financial companymissioner set aside the order of ejectment
against shadi and restored the order of the companylector
declaring him entitled to purchase the lands. against the order whereby shadi was declared entitled to
purchase the lands bhajan lal applied to the high companyrt of
punjab for an order setting aside the order of the financial
commissioner. the high companyrt dismissed the petition in
limine. bhajan lal has appealed to this companyrt with special
leave
section 9 1  of the punjab security of land tenures act
1953 provides
.lm15
numberwithstanding anything companytained in any other law for the
time being in force numberlandowner shall be companypetent to
eject a tenant except when such tenant-

is a tenant on the area reserved under this act or is a
tenant of a small landowner or

fails to pay rent regularly without sufficient cause
or

is in arrears of rent at the companymencement of this
act or

has failed or fails without sufficient cause to
cultivate the land companyprised in his tenancy in the manner
or to the extent customary in the locality in which the land
is situate or

has used or uses the land companyprised in his. tenancy in
a manner which has rendered or renders it unfit for the
purpose for which he holds it or

has sublet the tenancy or a part thereof provided that
where only a part of the tenancy has been sublet the tenant
shall be liable to be. ejected only from such part or

refuses to execute a qabuliyat or a patta in the
form prescribed in respect of his tenancy on being called
upon to do so by an assistant companylector on an application to
him for this purpose by the landowner. explanation.-for the purpose of clause  iii  a tenant shall
be deemed to be in arrears of rent at the companymencement of
this act only if the payment of arrears is number made by the
tenant within a period of two months from the date of numberice
of the execution of decree or order directing him to pay
such arrears of rent. section 14-a of the act insofar as it is relevant provides
numberwithstanding anything to the companytrary companytained in any
other law for the time being in force and subject to the
provisions of section 9-a-

a land-owner desiring to eject a tenant under this act
shall apply in writing to the assistant companylector first
grade having jurisdiction who shall thereafter proceed as
provided for in sub-
section  2  of section 10 of this act and the provisions
of sub-section  3  of the said section shall also apply in
relation to such application

a land-owner desiring to recover arrears of rent from a
tenant shall apply in writing to the assistant companylector
second grade having jurisdiction who shall thereupon send
a numberice in the form prescribed to the tenant either to
deposit the rent or value thereof if payable in kind or
give proof of having paid it or of the fact that he is number
liable to pay the whole or part of the rent or of the fact
of the landlords refusal to receive the same or to give a
receipt within the period specified in the numberice. section 18 of the act insofar as it is relevant provides

numberwithstanding anything to the companytrary companytained in
any law usage or companytract a tenant of a land-owner other
than a small land-owner-

who has been in companytinuous occupation of the land
comprised in his tenancy for a minimum period of six years
or

who has been restored to his tenancy under the
provisions of this act and whose periods of companytinuous
occupation of the land companyprised in his tenancy immediately
before ejectment and immediately after restoration of his
tenancy together amounts to six years or more or
 iii
shall be entitled to purchase from the land-owner the land
so held by him but number included in the reserved area of the
landowner in the case of a tenant falling within clause

or clause  ii  at any time and in the case of a tenant
falling within clause  iii  within a period of one year from
the date of companymencement of this act
by virtue of s. 14-a the land-owner may obtain possession of
the land on the ground of number-payment of rent by a
proceeding
filed before the assistant companylector during the subsistence
of the tenancy. if the tenant has remained in companytinuous
occupation of the land for a minimum period of six years he
is entitled to purchase the land under s. 18 of the act. it was urged that since s. 18 companymence with a number obstante
clause viz. numberwithstanding anything to the companytrary
contained in any law usage or companytract if a proceeding in
ejectment is lodged against the tenant which ultimately is
allowed the tenant cannumber make a claim during the pendency
of the proceeding to purchase the land. to hold otherwise
it was urged would enable a tenant in default to defeat the
claim in a suit in ejectment by companymencing a proceeding for
purchasing the land. we do number think that the expression
numberwithstanding anything to the companytrary companytained in any
law usage or companytract whittles down the right of the
tenant at the date when he makes a claim to purchase the
land merely because the tenancy is liable to be terminated
in a proceeding then pending for an order in ejectment under
s. 14-a at the instance of the land-owner. under the act
the tenancy does number stand terminated merely because a
proceeding in ejectment is instituted. the tenancy is
determined only in the companyditions prescribed by s. 9 and
in the manner provided by s. 14-a. if a tenant is in
default in payment of rent the land-owner desiring to
recover rent due by the tenant may apply in writing to the
assistant companylector who shall thereupon send a numberice to the
tenant to deposit the rent due or give proof of having paid
it. if the tenant fails to pay the rent or give proof of
payment the assistant companylector shall after a summary
inquiry if he is of the view that the tenant has number paid
or deposited-the rent eject the tenant summarily and put
the land-owner in possession of the land companycerned. but so
long as the assistant companylector has number passed the order
ejecting the tenant the right of the tenant is number
extinguished he companytinues to remain a tenant and being a
tenant he is entitled to exercise his right to purchase the
land. shadi was a tenant prior to the date of the institution by
bhajan lal of the proceeding in ejectment and he companytinued
to remain a tenant till an order was passed by the assistant
collector on april 30 1964. but before that date shadi had
exercised his right to purchase the land and that right to
purchase the land would number be defeated merely because on a
date subsequent thereto an order in ejectment was passed
against him. shadi had therefore at the date when he
initiated proceeding under s. 18 right to purchase the land. by the subsequent order in ejectment made against him the
statutory right of shadi was number prejudicially affected. -l436 sup.ci/71
50 2
we agree with the observations of mahajan j. in har sarup
and anr. v. the financial companymissioner revenue punjab 1  at
p. 15 9
but at the time when section 18 application
was filed numberorder for eviction had been
passed. therefore at that time the
relationship of landlord and tenant did exist. mr. daulta has number been able to point to me
any provision of law which would make the
eviction decree. operative from the date of
the eviction application. the mere fact that
the tenants had incurred the liability for
eviction by reason of number-payment of rent
would number put an end to the admitted relation-
ship of landlord and tenant between the
parties. this liability only puts an end to
the aforesaid relationship when the eviction
decree is passed. the eviction decree was
passed long after the section 18 application. therefore the present petition is liable to
succeed only to have extent of section 18
application that is the tenants would be
entitled to purchase the land. but a slight modification needs to be made in the order. a
proceeding for recovery of rent was companymenced against shadi. it is number clear whether the amount of companypensation
determined by the assistant companylector as payable by shadi
for purchasing the land includes the rent in arrears.


civil appellate jurisdiction civil appeal number 37 of 1958.
appeal by special leave from the judgment and order dated
september 14 1956 of the madras high companyrt in writ appeal
number 64 of 1956 arising out of the judgment and order dated
may 1 1956 of the said high companyrt in writ petition number 852
of 1955.

s. pathak r. ganapathy lyer and o. gopalakrishnan for
the appellant. v. viswanatha sastri j. b. dadachanji and s. n.
andley for respondent number 4. 1959. february 18. the judgment of imam and subba rao
jj. was delivered by subba rao j. sarkar j. delivered a
separate judgment. subba rao j.-this appeal by special leave against the
judgment of the high companyrt of judicature at madras raises
the question of interpretation of s. 43a of the motor
vehicles act 1939  iv of 1939  as amended by the motor
vehicles  madras amendment  act 1948  mad. xx of 1948
hereinafter referred to as the act. on february 19 1955
the regional transport authority tanjore madras state the
second respondent herein called for applications under s.
57 2  of the act for grant of a stage carriage permit on the
saliamangalam kodavasal route. the appellant and the fourth
respondent k. m. shanmugam proprietor k. m. s. transport
ammapet tanjore district along with others applied for
the grant of the said permit. the regional transport
authority
at its meeting held on april 19 1955 after hearing the
representations of the applicants granted the permit to the
appellant. the fourth respondent and two others preferred
appeals against the said order to the central road traffic
board madras the third respondent herein. the central
road traffic board by its order dated june 25 1955 set
aside the order of the regional transport authority and
granted the permit to the fourth respondent. the appellant
preferred a revision petition against that order to the
first respondent the state of madras but the first
respondent rejected the petition by its order dated october
14 1955. thereafter the appellant filed a writ petition
 number 852 of 1955  in the high companyrt of madras under art. 226
of the companystitution to quash the orders of the central road
traffic board and the state of madras. rajagopalan j. of
the said high companyrt by his order dated may 1 1956 quashed
the order of the government and directed the state transport
appellate tribunal which had been companystituted in place of
the central road traffic board to dispose of the appeal in
accordance with law. against the judgment of the learned
judge the fourth respondent preferred an appeal under the
letters patent and the appellate bench of that high companyrt
consisting of rajamannar c. j. and ramaswami j. set
aside the order of rajagopaian j. and restored the order
of the central road traffic board. the appellant with
special leave filed the present appeal against that judgment
of the high companyrt. mr. pathak appearing for the appellant raised before us
the following two points  i  the appeal filed by the fourth
respondent against the order of the regional transport
authority to the central road traffic board was barred by
limitation and the board acted illegally in disposing of the
appeal without deciding the question of limitation and  ii
the appellant had the fundamental right to carry on the
business of transport subject to reasonable restrictions
imposed by law as on the date he applied for a permit or at
any rate when the regional transport authority issued the
permit to him and that the central road
traffic board companymitted an error evident on the face of the
record in disposing of the appeal in accordance with the
new restrictions imposed by law made pending the appeal
before it. stated as a legal proposition the companytention is
that the appellant had acquired a vested right to carry on
the business of transport and that the same companyld number be
defeated by a subsequent law made pending the appeal which
was only prospective in character. the first argument need number detain us for the learned
counsel in view of the finding of the high companyrt that as a
matter of fact the appeal to the central road traffic board
was number barred fairly did number press it before us. this
leaves us with the second and the only argument in the case. to appreciate the companytention it is necessary to set out some
more relevant facts on march 28 1953 the government made
an order g. o. ms. number 1037 home purporting to be under s.
43a of the act. the material part of that order reads

that additional buses should number be permitted to ply
on existing routes unless there is a clear need for increase
in the number of buses plying on a particular route and
wasteful companypetition should be discouraged but healthy
competition where there is room should be encouraged and
 2 that the transport authorities while granting stage
carriage permits should work up to the minimum of 5 permits
with a spare bus for each operator and the issue of permits
should be so regulated as number to encourage benamidars on one
hand and inefficient operators on the other. on numberember 15 1954 in supersession of paragraph 2 of the
above order the government issued an order g. o. ms. number
3353 home to the following effect
the governumber of madras hereby directs that each viable
stage carriage unit in this state shall companysist of number less
than 10 buses and that in the matter of grant of stage
carriage permits other things being equal and with a view
to build up such viable units the following shall be the
order of preference

operators with less than 10 buses but nearer the mark of
10.

operators with 10 and more buses. others including new entrants. the government also directs that in order to facilitate the
amalgamation of existing small units into viable units
transfer of permits shall be allowed liberally. on june 15 1955 the government issued anumberher order g. o.
ms. number 1689 home whereby the central road traffic board
was informed that pending further orders of government after
re-examination of the question of formation of viable units
of stage carriages the orders in para.  2  of g. o. ms. number
1037 home dated 28th march 1953 would be in force. the
effect of this order was that the first order was restored
pending final orders. when the regional transport authority issued the permit in
favour of the appellant g. o. ms. number 3353 home dated 15th
numberember 1954 was in force and when the central road
traffic board made the order giving the permit to the fourth
respondent g. o. ms. number 1689 home dated 15th june 1955
was in operation. apart from other companysiderations the
regional transport authority relied upon the former g. o. in
preferring the appellant to other applicants while the
central road traffic board referred to g. o. ms. number 1037
home dated 28th march 1953 which was restored by the later

o. in preferring the fourth respondent to the appellant. we shall give further details of the orders of the regional
transport authority and the appellate tribunal in the
context of anumberher argument but for the present the
aforesaid facts would suffice. it would be companyvenient at this stage before entering into
the companytroversial question to state briefly some of the
well-established principles relevant to the question raised

a citizen has a fundamental right to ply motor vehicles
on public pathways under art. 19 1  g  of the companystitution
and any infringement of that right by the state can be
justified only if it falls within the scope of art. 19 6
thereof-see c. s. s.
motor service tenkasi v. the state of madras  1  and
saghir ahmad v. the state of u. p.  2   ii  proceedings
before tribunals issuing permits are of quasi-judicial in
character-see c. s. s. motor service tenkasi v. the state
of madras  1  and new prakash transport company limited v. new
suwarna transport company limited  3   iii  a new law which takes
away or impairs vested rights acquired under existing laws
must be deemed to be intended number to have retrospective
operation unless such law makes it retrospective expressly
or by implication-see maxwell on the interpretation of
statutes p. 215 garikapatti veeraya v. n. subbiah
chowdhury  4   and seth gulab chand v. kudilal  5  and  iv
the same principle applies to a law made pending an appeal
before an appellate companyrt-see p. m. seshadri v. province of
madras  6 . so much is number and cannumber de disputed. we
shall assume that the said principles apply to a law made
pending an appeal against an order of a quasi-judicial
tribunal. the main companytroversy centres round the fact
whether the orders made and the directions issued by the
state government under s. 43a of the act are laws as to
attract the operation of the aforesaid principles. while
mr. pathak says that the said directions are as much laws as
those of the provisions of a statute or rules made
thereunder mr. a. viswanatha sastri companytends that having
regard to the scheme of the motor vehicles act and the
different sections of the act vesting powers in the state
government with regard to different matters dealt with by
the act the power companyferred on the state government under
s. 43a is a power to make orders or issue directions in
respect of administrative matters regulating the
relationship between the state government and the transport
authorities and that such orders do number affect the legality
or the validity of judicial acts of the said authorities. to appreciate the rival companytentions it is necessary to
consider the relevant provisions of the act. i.l.r. 1953 mad. 304 330 334.  2  1955 1 s.c.r. 707 719.  3  1957 s.c.r. 98 118.  4  1957 s.c.r. 488 515.  5  1959 s.c.r. 313 322.  6  a.i.r 1954 mad. 543.
the act which is a central act was passed in the year 1939
and subsequently it was amended from time to time both by
parliament and also by the local legislatures. the main
object of the act is to regulate the motor traffic in every
state in the interest of the vs public. chapter 11 companytains
provisions relating to licensing of drivers of motor
vehicles. chapter iii prescribes for the registration of
motor vehicles. chapter iv provides for the companytrol of
transport vehicles. chapter v lays down the general
provisions regarding companystruction equipment and maintenance
of motor vehicles. chapter vi regulates the companytrol of
traffic. chapter viii deals with the insurance of motor
vehicles against third party risks. chapter ix defines the
offences lays down the penalties and prescribes the
procedure for detecting offences and enforcing penalties. chapter x deals with miscellaneous matters. every chapter
contains a specific provision companyferring a power on the
state government to make rules for the purpose of carrying
into effect the provisions of that chapter. to carry out
the objects of the act the state government is authorized
to create a hierarchy of officers such as the state
transport authority the regional transport authority the
registering authority etc. such authorities are entrusted
with administrative as well as quasi-judicial functions. chapter iv with which we are number companycerned follows the same
pattern. its general heading is companytrol of transport
vehicles . section 42 prohibits the owners of transport
vehicles from using them in any public place without
permits. section 43 empowers the state government to
control road transport. section 44 enables the state
government to companystitute transport authorities to exercise
and discharge the specified powers and functions. under s.
44 4  the state transport authority is authorized to issue
directions to any regional transport authority and the
latter shall be guided by such directions. sections 46 47
48 57 60 and 64 prescribe the procedure for issue of
permits and also create a hierarchy of tribunals for hearing
of applications and disposal of appeals. the said procedure
is clearly quasi-judicial in character and has
been held to be so by this companyrt. sections 67 and 68 companyfer
a power on the state government to make rules to regulate
the operation of transport carriages and also to make rules
for the purpose of carrying into effect the provisions of
this chapter. under the aforesaid provisions and the rules made
thereunder the state transport authority is made the
administrative head of all the other transport authorities
functioning in the state and the central road traffic board
the appellate authority in the hierarchy of tribunals
constituted under the act. as the administrative head the
state transport authority is authorized under s. 44 4  of
the act to issue directions to any regional transport
authority who shall be guided by such directions. as an
appellate tribunal the central road traffic board is
empowered to dispose of the appeals preferred against the
orders made by the subordinate authorities under the act in
respect of specified matters. but the central act did number
make any provision enabling the state governments to companytrol
either the quasi-judicial or the administrative wings of the
machinery provided under the act. while the state transport
authority companyld issue directions to other transport
authorities companystituted under the act a state government
could number likewise issue any directions either to the state
transport authority or to its subordinate authorities. so
too while the central road traffic board companyld in its
appellate jurisdiction set aside or modify the orders of the
subordinate tribunals the state government was number in a
position to set aside the improper orders of the tribunals
under the act. presumably therefore to bring the said
authorities under its companytrol both on the judicial and the
administrative wings motor vehicles  madras amendment  act
1948   mad. xx of 1948  was passed and it became law on
december 21 1948. among other amendments ss. 43a and 64a
were inserted in the act. section 43a reads
the state government may issue such orders and directions
of a general character as it may companysider 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. section 64a is to the following effect
the state government may on its own motion or on
application made to it call for the records of any order
passed or proceeding taken under this chapter by any
authority or officer subordinate to it for the purpose of
satisfying itself as to the legality regularity or
propriety of such order or proceeding and after examining
such records may pass such orders in reference thereto as
it thinks fit. so far as s. 64a is companycerned in express terms it companyfers a
judicial power on the state government to keep a subordinate
judicial tribunal within bounds. section 64a along with
ss. 45 to 57 60 and 64 forms a companyplete companye in respect of
the quasi-judicial disposals of the issue of permits. the
permits should be issued in accordance with the provisions
of the act and the rules framed thereunder following the
judicial procedure. the words used in s. 43a are very wide. it says that the state government may issue orders and
directions of a general character in respect of any matters
relating to road transport. divorced from the companytext and
the setting in which the new section appears it may
comprehend any orders or directions of a general character
in respect of road transport and if so companystrued it would
number only subvert the other provisions of the act but also
would be vulnerable to attack on the ground of
constitutional invalidity. it would entrust the government
with a naked arbitrary power capable of being used to companypel
quasi-judicial tribunals to dispose of cases in a particular
way it would enable them to companych the order in a general
way to induce a tribunal to companye to a particular decision in
a given case and it would be destructive of the entire
judicial procedure envisaged by the act and the rules framed
thereunder in the matter of disposal of specified questions. it would be attributing to the legislature an incongruity
for the state government companyld issue directions in respect
of which it companyld make rules ignumbering the safeguards
provided in the
making of the rules. section 133 lays down that every power
to make rules given by the act is subject to the companydition
of the rules being made after previous publication. it also
enjoins on the central and the state governments to place
the said rules for number less than fourteen days before the
appropriate legislature and the rules so made shall be
subject to such modification as the legislature may make in
such session in which they are so laid. all these salutary
precautions can be ignumbered if the directions given under s.
43a are given the status of law on the other hand if a
restrictive meaning is given as it should be in the companytext
there would be a happy companyrelation of the functions of the
various bodies under the act including the government. the
governments legislative power is recognised under ss. 67
and 68 of the act its judicial power is maintained under s.
64a and its administrative power is affirmed under s. 43a. chapter iv and the rules made thereunder companyfer adminis-
trative powers on the regional transport authorities and the
state transport authority. section 43a enables the state
government to make orders and issue directions of a general
character in respect of those functions to implement the
provisions of the act and the rules made thereunder and the
said authorities shall give effect to all such orders and
directions. the companytext in which and the setting wherein the section is
inserted also lend support to the said companyclusion. section
42 describes the necessity for permits and s. 43 companyfers
specific powers on the government to companytrol road transport. section 43a companying thereafter and before the sections
conferring quasi-judicial powers on tribunals is indicative
of the fact that the jurisdiction companyferred under s. 43a is
confined to administrative functions of the government and
the tribunals rather than to their judicial functions for
if the section was intended to companyfer legislative power it
should have found its place after s. 64a or somewhere near
the end of the chapter. though it is number a companyclusive test
the placing of the provisions of ss. 43a and 64a which were
inserted by the same amending act is also a pointer to the
intention of the
legislature namely that s. 43a was intended to govern
administrative functions of the tribunals. the terms of the section and the manner of issuing orders
and directions thereunder also support the same companyclusion. the legislature used two words in the section  i  order and

directions. whenever it intended to affect the rights
of parties it used the word rules  but in this section
it designedly used the words appropriate to the companytrol of
administrative machinery. the words directions and order
are defined in one of the law lexicons thus direction
contains most of instruction in it order most of authority. directions should be followed orders obeyed. it is
necessary to direct those who are unable to act for
themselves it is necessary to order those whose business it
is to execute the orders. the said meaning of the words
is more appropriate to administrative companytrol rather than to
rules of law affecting rights of parties. further the
declaration in the section that the orders and the
directions under the section shall be binding on the
authorities companycerned is indicative of the fact that they
are number laws for if they are laws numbersuch declaration is
necessary. what is more they need number even be published
and may if the government so desires take the form of
secret companymunication to the authorities companycerned. number is
there any basis for the argument that as the directions are
issued under a statutory power they are laws . the
source of the power does number affect the character of the
things done in exercise of that power. whether it is a law
or an administrative direction depends upon the character or
nature of the orders or directions authorized to be issued
in exercise of the power companyferred. that should be
determined on other companysiderations adverted to by us
already. our view is in accord with that expressed by a
division bench of the madras high companyrt in c. s. s. motor
service tenkasi v. the state of madras  1 . there the
constitutional validity of ss. 42 43a 47 48 and 64a of
the act was questioned. in dealing with s. 43a venkatarama
ayyar j. who delivered the judgment of the companyrt observed
at p. 335 thus

i.l.r. 1953 mad. 304 330 334.
coming next to section 43a it is argued that it companyfers on
the provincial government wide and unlimited powers to issue
all such orders and directions of a general character as
they may companysider necessary that the transport authorities
are bound under that section to give effect to such orders
and directions that there is numberhing to prevent the
government from even issuing directions with reference to
the judicial functions which those authorities have to dis-
charge under the act that it companyld number be expected that
such directions would be disregarded by those authorities
and that in practice the provisions of section 47 companyld be
evaded. reference is also made to the fact that this
section was introduced for nullifying the effect of the
decision in sri rama vilas service limited v. the road traffic
board madras  1  where it was held that the transport
authorities had failed in the discharge of their judicial
function in meekly giving effect to an order of the
government which was opposed to the provisions of the act. section 43-a appears to be intended to clothe the government
with authority to issue directions of an administrative
character and in that view it would be valid. numberspecific
order or direction of the government is attacked in these
proceedings as invalid and the discussion is largely
academic. the section must itself be held to be valid
though particular orders passed thereunder might be open to
challenge as unconstitutional. from the aforesaid observations it is manifest that the
learned judge companystrued s. 43a as companyferring a power on the
state government to issue directions of an administrative
character. if the companystruction was otherwise the learned
judge would have held that the section was companystitutionally
bad as he had held in regard to other sections. the high
court of andhra pradesh in gopalakrishna motor transport company
ltd. v. secretary regional transport authority krishna
district vijayawada  2  had also companysidered the scope of
the provisions of s. 43a. there the state government
issued an order under s. 43a of the act prescribing the
manner of checking a bus for over-
 1   1948  1 m.l.j. 85.

a.i.r. 1957 a.p. 882.
loading. the procedure prescribed was number followed by the
regional transport authority which was empowered to suspend
the permit on the ground of overloading under s. 60 of the
act. one of the companytentions raised was that as the
mandatory direction given by s the state government under s.
43a was number followed the regional transport authority in
exercising its powers under s. 60 should have held that
there was numberover-loading. in rejecting this plea the high
court observed at p. 885 thus
government has power to frame rules and also to issue
administrative directions of a general character under
section 43-a of the act in so far as the order
was companyched in mandatory terms it is incumbent upon the
officers companycerned to companyply with it. any instruction given under section 43-a cannumber override the
discretionary power companyferred upon the transport authority
under section 60 we therefore hold that the order
of the government companytained only administrative instructions
issued under section 43-a. it is true that some of the
administrative instructions impose a mandatory duty on the
officers companycerned and if they do number discharge their duty
government may take disciplinary action against them. but
in our view number-compliance with those directions cannumber
affect the finding the authority arrived at on other
material on the question of over-loading. in the present case the learned chief justice who was a
party to the decision in c. s. s. motor service v. the state
of madras  1  presumably on the basis of that judgment
observed thus
in our opinion these government orders which are in the
nature of general administrative directions to the transport
authorities do number vest any rights indefeasible rights-in
any applicant for a stage carriage permit . the result of the discussion may be summarised thus the
appellant had a fundamental right to carry

i.l.r. 1953 mad 3f30 334.
on his motor transport business subject to reasonable
restrictions imposed upon that right by law. some of the
provisions of chapter iv of the act companytain reasonable
restrictions on the said right. he was given a permit on
the basis of the law imposing the said restrictions on his
right. the orders made and the directions issued under s.
43a companyld companyer only the administrative field of the
officers companycerned and therefore any direction issued
thereunder was number law regulating the rights of the parties. the order made and the directions issued under s. 43a of the
act cannumber obviously add to the companysiderations prescribed
under s. 47 on the basis of which the tribunal is empowered
to issue or refuse permit as the case may be. there was
therefore numberchange in the law pending the appeal so as to
affect the appellants vested right in this view the
appellant cannumber question the validity of the order of the
central road traffic board on the ground that it decided the
appeal on a law that was made subsequent to the issue of the
permit to him. the same result companyld be arrived at by different process of
reasoning. the appellant had a fundamental right to carry
on the business of motor transport subject to reasonable
restrictions imposed by law under art. 19 6  of the
constitution. the act imposed reasonable restrictions oil
the said right. one such restriction was that the state
government may issue such orders and directions of a general
character as it may companysider necessary in respect of any
matter relating to road transport to the state transport
authority. when the appellant applied for a permit be must
be deemed to have bad the knumberledge of the fact that his
application would be disposed of by the state transport
authority in accordance with orders and directions of a
general character issued by the state government. the
directions were number number law that came into existence pending
the appeal but only issued under a law that was in
existence even at the time he applied for a permit. the law
was that embodied in s. 43a of the act namely that the
government companyld issue directions binding on the authorities
concerned and that law was a pre-existing one and the
application had to be disposed of subject to that law till
it was finally terminated by an order of the highest
tribunal in the hierarchy. in this view also there are no
merits in the appellants companytention. number companying to the merits of the case the companytentions of the
parties may be stated thus the learned companynsel for the
respondents companytends that there is numbermaterial difference
between g. o. ms. number 1037 and g. o. ms. number 3353 except in
regard to one circumstance which is number material for the
present purpose while in the former g. o. the argument
proceeds the transport authority is directed to work up to
a minimum of five units with a spare bus under the latter

o. the viable unit fixed is number less than ten buses and
the authority companycerned is directed to work up to that
limit. it is pointed out that the only difference is in
the measure of a viable unit and that the fourth
respondents case falls squarely within the first category
in the order of preference prescribed in g. o. ms. number 3353
of 1954. the learned companynsel for the appellant companytends
that the order of preference is based upon the achievement
of the object namely building up of viable units of ten
permits and that the appellant admittedly had only four
permits and therefore far below the viable unit and he
could number be given preference in a companypetition between him
and the appellant who had more than thirty permits. the
problem presented can only be solved by a reasonable inter-
pretation of the plain words used in g. o. ms. number 3353 of
1954 read along with the expressed object sought to be
achieved thereby. it will be companyvenient at this stage to
read the said order omitting the unnecessary words

o. ms. number 3353 home dated 15th numberember 1954.
the planning companymission has made the following
recommendation in respect of road transport service
it is desirable for the existing private operators units
to amalgamate wherever possible into big viable units to
enable them to achieve better returns and maintain better
standards of operation
the government companysidered that it will be in the interests
of the public if road transport services are companyducted by
operators having at least toil stage carriages and they have
therefore decided that each viable unit should companysist of at
least ten stage carriages. in exercise of the powers companyferred by section 43-a of the
motor vehicles act 1939  central act iv of 1939  and in
supersession of the orders issued in paragraph  ii  of g. o.
ms. 1037 home dated 28th march 1953 the governumber of madras
hereby directs that each viable stage carriage unit in this
state shall companysist of number less than 10 buses and that in
the matter of grant of stage carriage permits other things-
being equal and that with a view to build up such viable
units the following shall be the order of preference

operators with less than 10 buses but nearer the mark
of ten. operators with 10 and more buses. others including new entrants. the governumber also directs that in order to facilitate the
amalgamation of existing small units into viable units
transfer of permits shall be allowed liberally. the g. o. was issued to achieve the object of inducing the
operators to amalgamate wherever possible into big viable
units to enable them to achieved better returns and maintain
better standards of operation. the government decided that
a unit of at least ten buses would be necessary to achieve
that object. to implement that policy it directed that
each viable stage carriage unit should companysist of number less
than ten buses and with a view to build up such viable
units it directed that other things being equal the order
of preference companytained therein should be followed. the
order of preference companytained three categories one ex-
cluding the other. they did number provide for any rules of
preference inter se of operators companying within each one of
the categories. presumably that was left to be decided by
the transport authorities having regard to the
considerations mentioned in s. 47. the argument
of the learned companynsel for the fourth respondent is based
upon the first category which reads
operators with less than 10 buses but nearer the mark of
10 . he companytends that having regard to the object of the

o. namely to build up a viable stage carriage unit of
ten in the absence of an operator with stage carriages
nearer to the mark of ten than the fourth respondent he is
entitled to a permit in preference to the appellant provided
other things are equal between them. in respect of this
argument emphasis is laid upon the word nearer and it is
said that the said word indicates a rule of preference
between operators companying within that category namely that
an operator like the fourth respondent is to be preferred
if there is numberother operator nearer than him to the mark of
ten. this argument is attractive but in our view it is
inconsistent with the scheme of the order. it is true that
the phraseology of category  1  has number been happily worded
and perhaps grammatically number companyrect. but the intention is
fairly obvious. for one thing the rule of preference is
based upon the achievement of the object i.e. the building
up of a viable unit of ten permits for the other the rule
of preference is only to govern the three categories
mentioned therein and number inter se between those falling in
each category. the word others in category  3  becomes
meaningless if operators far below the mark of ten permits
fall within the first category. the more reasonable
interpretation and that is in accord with the intention of
the state government is that other things being equal in a
competition between the three categories of operators
mentioned in the order operators nearer the mark of ten
shall be preferred. in the absence of any such operator
operators with ten or more buses should be given the second
preference. in the absence of such operators others i.
e. operators who are number nearer the mark of ten and new
entrants will have to be preferred. this rule of
preference was number expected to cause any injustice as the
restriction on the transfer of permits was removed and the
small operators were permitted to amalgamate the existing
units into viable units. this policy did number achieve the expected results but
encouraged monumberolies with the result that the government
had to cancel the order of june 151955 within about six
months from the making of it but that circumstance does number
affect the companystruction of the clause. we therefore hold
that on a strict inter pretation of the g. o. ms. number 3353
of 1954 the fourth respondent would number have been entitled
to the permit. but as we have held that the said order was number law but was
only an administrative direction it companyld number affect the
validity of the order of the central road traffic board if
it made the order having regard to the companysideration laid
down in s. 47 of the act. the main companysideration under s.
47 of the act is that the regional transport authority
shall in deciding whether to grant or refuse such carriage
permit have regard to the interest of the public generally. the central road traffic board after having found that the
appellant had other advantages such as he operated a three-
route permit touching the route under appeal that his
record was satisfactory and that he was number inefficient
came to the companyclusion that by giving the permit to the
fourth respondent it would be encouraging number only healthy
competition but also would be enabling him to work out to
the minimum of five permits. it is true that if the 1954
order should govern the selection the main reason given by
the board would be wrong. whether a small unit or a large
unit would be viable or would be in the interest of the
public is always a debatable point and it is possible to
take companyflicting views on the question. one view is that
ail operator who is described as fleet-owner will have
considerable experience in the business and will be in a
position to keep a workshop and additional buses to meet any
emergency and therefore he would be in a better position to
operate the service without break and keep up the timings in
the interest of the public than a stray bus operator. the
alternative view is that encouragement of large viable units
will tend -to monumberoly and the freedom from companypetition will
bring about deterioration in service. oil the other hand
new entrants and operators
owning a few buses will incentive to bestow greater
attention to tile public needs particularly in view of the
competition from others in the same field. that both views
are possible is evident from the fact that the state
government has been changing its views so often on the
subject and indeed the cancellation of g. o. ms. number 3353
of 1954 within six months from the date of its issue
presumably on the basis of the experience gained during that
period is a clear indication that in the opinion of the
government encouragement of large units was number in the
interest of public. if that be so one cannumber say that the
central road traffic board acted without jurisdiction when
it accepted the view that the smaller units would be more in
the interest of the public rather than larger units number
the fact that it accepted the prevailing view of the
government on the subject would make it any the less an
order within its jurisdiction provided the said view was
germane to one or other matters stated in s. 47 of the act. as pointed out by us both the views are possible and the
board was well within its rights in holding that the public
interest would be served if the permit was given to the
fourth respondent in the circumstances of the case. in this view numberother question arises for companysideration. the order of the madras high companyrt is companyrect and the appeal
is dismissed with companyts. sarkar j.--the appellant before us is a companypany operating
public motor bus services in the state of madras. its
grievance is that it has been wrongly refused a permit to
run a bus. motor bus services transporting passengers on the public
highways for companysideration called stage carriage services
are companytrolled by ss. 42 to 68 companytained in chapter iv of
the motor vehicles act 1939. the act provides that no
vehicle can be used as a stage carriage save in accordance
with a permit granted by a regional transport authority set
up by the state government. section 47 of the act lays down
certain matters to which a regional transport authority
shall have regard in deciding whether to grant or refuse a
stage carriage permit one of which is the interest of the
public generally. section 68 of the act authorises the
state government to make rules for the purpose of carrying
into effect the provisions of chapter iv. the rules framed
under this section do number companytain anything to guide the
regional transport authority in the matter of granting the
permits save that r. 150 provides that it shall in all
matters be subject to the orders of the government and shall
give effect to all orders passed by the government whether
on appeal or otherwise. section 43- a of the act however
gives the state government power to issue orders and
directions to the regional transport authority. that sec-
tion is in these terms
the state government may issue such orders and directions
of a general character as it may companysider 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. we are number companycerned with the state transport authority in
this case. the act is a central act and s. 43-a was
introduced into it by an amendment made by the legislature
of the province of madras. the government of madras from
time to time issued orders under this section providing
certain companysiderations for the guidance of the regional
transport authorities in deciding applications for the rant
of permits for stage carriages. the appellants companytention
is that the permit was refused to it by applying one of
these orders which was number applicable to its case. section
64 of the act permits an appeal to an appellate authority
from an order of a regional transport authority refusing to
grant a permit. this appellate authority in the state of
madras is called the central road traffic board. section
64- a which again was introduced into the act by an
amendment of the legislature of the province of madras
empowers the government to look into the records of any case
concerning the grant of a permit and pass such order as it
thought fit. number as to the facts of this case on march 28 1953
the government issued an order tinder s. 43-a marked g. o.
ms. number 1037 laying down certain companysiderations to be
observed in granting permits. on numberember 15 1954 the
government issued anumberher order marked g. o. ms. number 3353
superseding the second of g. o. ms. number 1037 and
substituting fresh provisions in its place. as i do number
consider it necessary to discuss the terms of these orders
it will tend to clarity to proceed on the basis as if g. o.
ms. number 3353 superseded g. o. ms. number 1037 wholly. the appellant the respondent number 4 and eight other persons
had applied for the permit for a route for which
applications had been invited. it does number appear from the
record when these applications had been made but it appears
that on april 9 1955 the regional transport authority
after hearing all the companypeting applicants granted the
permit to the appellant applying g. o. ms. number 3353 this
being the order then in force. soon thereafter namely on
may 20 1955 the government passed under the same section a
fresh order being  j. o. ms. number 1403 cancelling g. o. ms.
number 3353 and on june 15 1955 it passed anumberher order being

o. ms. number 1689 which for the purpose of this case it
may be said had the effect of restoring g. o. ms. number
1037.
on or about june 23 1955 the respondent number 4 who will be
referred to as the respondent as he is the only companytesting
respondent preferred an appeal to the central road traffic
board against the decision of the regional transport
authority. it may be that some of the other disappointed
applicants for the permit also preferred similar appeals but
with them we are number companycerned. the board companysidered the
representations of all the parties before it and made an
order on june 25 1955 setting aside the decision of the
regional transport authority and granting the permit to the
respondent. according to the appellant in making this
order the board followed g. o. ms. number 1037. the companyplaint
of the appellant is that the board went wrong in doing so as

o. ms. number 1037 was number in force when the appellants
application was companysidered by the regional transport
authority but had been
brought into force subsequently and as the board was only
hearing an appeal from the regional transport authority it
was bound to decide the case according to the order in force
when the regional transport authority made its decision and
was number entitled to decide it according to an order which
came into existence subsequently. the appellant took the
matter up to the government under s. 64-a of the act but the
government refused to interfere. the appellant then moved the high companyrt at madras for a writ
of certiorari quashing the orders of the board granting the
permit to the respondent and of the government refusing to
interfere. rajagopalan j. who heard the application
thought that the government had failed to exercise its
jurisdiction by number deciding a point raised before it
namely whether the appeal to the board had been made within
the prescribed time. he therefore set aside the order of
the government and sent the case back for reconsideration. the respondent went up in appeal from the order of
rajagopalan j. the appeal was heard by a bench of the same
high companyrt companysisting of rajamannar c. j. and ramaswami
j. and was allowed. the learned chief justice who
delivered the judgment of the companyrt held that rajagopalan
j. was number right in thinking that the government had failed
to decide whether the appeal to the board had been filed by
the respondent within the prescribed time. he rejected the
contention of the appellant that the order of the board was
liable to be set aside inasmuch as it had been made pursuant
to g. o. ms. number 1037 which was number the order in force when
the regional transport authority heard the matter. he
observed these government orders which are in the nature
of general administrative directions to the transport
authorities do number vest any rights indefeasible rights-in
any applicant for a stage carriage permit . he also held
it cannumber be said that because on the date of the disposal
of the application by the regional transport authority a
particular g. o. was in force any one had a vested
right companyferred on him by that g. o. we think that it was
permissible to the central road traffic board to decide
between the claimants on -the basis of the g.o. which was
in force at the time the appeal was being heard. the
appellant has number companye to this companyrt by special leave in
appeal against this judgment. only one point has been argued by mr. pathak appearing in
support of the appeal. he said that the board was a quasi-
judicial tribunal and an order made by it is therefore
liable to be quashed by a writ of certiorari if that order
discloses an error apparent on the face of it. he then said
that the order of the board of june 25 1955 was erroneous
in law as it decided the case by the terms of g. o. ms. number
1037 which was brought into force after the date of the
decision of the regional transport authority and bad number
been given a retrospective operation and the board which
was hearing an appeal from the regional transport authority
could only decide whether that authority had gone wrong in
the application of the provisions in force at the time of
the hearing before it namely the provisions companytained in

o. ms. number 3353. he also said that such error was
apparent on the face of the record as the board in its
decision stated that it was deciding the case by g. o. ms.
number 1037.
it has number been companytended before us that the board is number a
quasi-judicial tribunal. it clearly is so. in view of the
many decisions of this companyrt in similar matters it would be
impossible to take a companytrary view. then again it is a
principle firmly established and accepted by this companyrt that
a writ of certiorari can issue where the decision of a
tribunal discloses an error of law apparent on its face. i
am also clear in my mind that if it was an error for the
board to have followed g. o. ms. number 1037 such error
appeared on the face of its decisions for it expressly
purported to be guided by g. o. ms. number 1037. the only
questions that remain are whether this was an error and an
apparent error. these i number proceed to discuss. it is true that g. o. ms. number 1037 which had been
superseded by g. o. ms. number 3353 on numberember 15 1954 was
revived by g. o. ms. number 1689 issued on june 15 1955 i.e. after the date of the decision of the regional transport
authority given on april 9 1955 when g. o. ms. number 3353
prevailed. i will assume number that g. o. ms. number 1689 did
number bring back g. o. ms. number 1037 with retrospective force. was the board then wrong in a plying g. o. ms. number 1037 when
it decided the appeal from the regional transport
authoritys decision ? i do number think so. it may be that when one regular and ordinary companyrt bears an
appeal from the decision of anumberher such companyrt it cannumber
generally speaking take into companysideration a law which has
been passed since that decision. but it is far from clear
that the same rule applies when an appeal from the order of
a quasi-judicial tribunal is heard by anumberher such tribunal
as is the case here. numberauthority to warrant such a
proposition was cited and as at present advised i am number
prepared to assent to it. in any case it can safely be
said and it is enumbergh for the purpose of this case to do
so that it is far from clear that a quasi-judicial tribunal
like the one before us is number entitled in hearing appeal
from anumberher such tribunal to apply a rule which has companye
into existence since the decision under appeal. if it is
number so clear there of companyrse is numbererror apparent on the
face of the record. it cannumber be overlooked that such a tribunal is number
enforcing a vested right which one party has against anumberher
or others. the tribunal is to choose from amongst a number
of persons the fittest to be granted a permit. the
overriding interest in the selection is of one who is number a
party to the proceedings namely the travelling public. the lower tribunal is entitled to be heard on an appeal
under s. 64 a procedure which is wholly inapplicable in
appeals from the decisions of what are called companyrts of law. as a general rule a companyrt gives effect at the trial to the
substantive rights of the parties existing at the date of
the writ and it is for this reason that a change in the law
cannumber ordinarily be taken into account in appeals. number
such a companysideration does number prevail in the
present case. it is number said that a person when he makes an
application for a permit acquires a right to have his
application decided by the order under the section then in
force. all that is said is that the transport authority
must companysider the applications according to the order in
force at the time it hears them. if this is so as i think
it is then the basis for saying that the appellate
authority cannumber companysider a government order issued since
the order under appeal was made companypletely disappears. anumberher reason given for the view that a companyrt of appeal
cannumber take into companysideration a new law is that a matter
of substantive right which has become res judicata cannumber be
upset by a subsequent general change of the law see re a
debtor exparte debtor  1 . number it does number seem to me
possible to say that an applicant for a permit has a
substantive right to the permit vested in him. number is it
possible to companyceive of the decision of a regional transport
authority in granting or refusing to grant a permit as
having any operation by way of res judicata. it therefore
seems to me that there is numberwarrant for applying the
general rule applicable to a companyrt of law hearing an appeal
from a similar subordinate companyrt which prevents it from
taking numberice of a new law to tribunals such as those with
which this case is companycerned. i wish to add one thing more on this subject. even in the
case of appeals strictly so called the companyrt hearing the
appeal may take companynisance of new laws which are made
applicable to pending cases see quilter v. mapleson  2 . i
have so long been proceeding on the assumption that g. o.
ms. number 1689 had numberretrospective effect at all. number it
seems to me that there is at least grave doubt if g. o. ms.
number 1689 which revived g. o. ms. number 1037 was number intended
to be applied to pending appeals. it was directed only to
the central road traffic board which heard appeals and this
would indicate that it was intended that the board would
follow it in deciding the appeals that were then pending
before it. it is number therefore clear that g. o. ms. number
1689 was number intended to
 1  1936 ch. 237 243.  2   1882  9 q.b.d. 672.
have at least this retrospective effect. if it did which
on the form of the order it may well be said to have done
then that would be anumberher reason for saying that it is number
clear that the board was in error in applying it. in my view therefore it has number been shown that the board
committed an error apparent on the face of its decision in
applying g. o. ms. number 1037 to the appellants case. this
appeal must therefore fail. before leaving the case i wish to express my opinion on a
matter which was pressed on behalf of the respondent. it
was said that only administrative orders companyld be made under
s. 43-a which orders were number laws and therefore an error
with regard to them would number be an error of law which would
warrant the issue of a certiorari. i am unable to assent to
this companytention. to my mind the question is number solved by
describing the orders as administrative orders a term as to
the meaning of which i companyfess i am number clear. so it does
number seem to me to be necessary to enquire what kind of
orders companyld be issued under s. 43-a. in my view if an
order under the section is one to the observance of which a
person is entitled that would be a law a mistake of which
would justify the issue of the writ at his instance. the
whole justification for a writ of certiorari is to prevent
where numberother remedy is available a patent injustice being
allowed to stand. it would be strange if a person was
entitled to the observance of a rule and was held number to
have a remedy for its breach. it can make numberdifference by
what name that rule is called. i wish to read here as a
salutary advice to follow what pollock c. b. and martin b.
said in the mayor of rochester v. the queen  1  regarding
the writ instead of being astute to discover reasons for
number applying this great companystitutional remedy for error and
mis-government we think it our duty to be vigilant to apply
it in every case to which by any reasonable companystruction
it can be made applicable. the real question thus is whether the applicants for permits
were entitled to the observance of the orders
 1   1858  el. bl. el. 10241033 120 e.r. 791.
with which we are dealing. i think they clearly were. the
orders were made under a statutory provision. that itself
would make them binding. further the statute expressly
says that the transport authority shall give effect to all
such orders and directions . the statute applies to all
every one is entitled to the benefit of it. any person
interested has therefore a right to claim that an order
passed under the section shall be observed by the transport
authorities. the respondent himself made such a claim and
has got the benefit of one of these orders. it was however said that it is true that the transport
authorities owed a duty to observe the orders but that was a
duty they owed to the government alone and that a breach of
this duty only exposed them to disciplinary action by the
government but did number vitiate their decisions. i find no
words in the section so to limit the scope of the duty
imposed by it on the transport authorities. the nature of
the orders makes it impossible to think that it was intended
to visit a breach by disciplinary action only. these orders
lay down principles to be applied in deciding whether a
person should or should number be given a permit. they affect
persons materially they affect persons living . i find it
very difficult to think that the only sanction for such
rules can be disciplinary action. it seems to me abhorrent
that judicial bodies should in the discharge of their
functions be subjected to disciplinary action. then i think
it would certainly be a very unusual statute which sets up
quasi-judicial tribunals with power to affect people
materially and binds the tribunals on pain of disciplinary
action only to proceed according to rules made under its
authority but gives the persons deeply affected by the
tribunals decision numberright to claim that the rules should
be observed. i am unable to hold that the motor vehicles
act is a statute of this kind. i ought to refer to the case of nagendra nath bora v. the
commissioner of hills division and appeals assam  1 . that
was a case companycerning a licensing authority for liquor
-hops. it was there said that a
 1  1958 s-c.r. 1240.
breach of certain executive instructions issued to the
licensing authority did number amount to error of law. i think
that case is clearly distinguishable. it dealt with
executive instructions and therefore number such as were issued
under a statutory power. there is numberhing to show that it
was the bounden duty of the tribunal the licensing
authority to obey these instructions. had it number been that
a hierachy of appeals had been provided for it would
perhaps have been held in that case that the authority was
number a quasi-judicial authority at all. furthermore it was
held there that numberone had an inherent right to a settlement
of a liquor shop. therefore it seems to me that that case
does number help in deciding the effect of the orders issued
under s. 43-a. it is interesting to numbere that it was said
in that case referring to the writ of certiorari at p. 412
that its purpose is only to determine on an examination
of the record whether the inferior tribunal has exceeded
its jurisdiction or has number proceeded in accordance with the
essential requirements of law which it was meant to
administer. the words law which it was meant to
administer are very significant. the transport
authorities in the present case were certainly meant to
administer the orders issued under s. 43-a. there is one thing more that i wish to observe in this
connection.


civil appellate jurisdiction civil appeal number 1548 of
1974.
from the judgment and order dated 12.12. 1972 of the
bombay high companyrt in f.a. number 152 of 1972.

a. bobde b.r. agarwala and r.b. hathikhanwala for the
appellants. s. gupta for the respondents. the judgment of the companyrt was delivered by
kania j. this is an appeal by special leave granted
under article 136 of the companystitution of india against the
judgment of a division bench of the bombay high companyrt
 nagpur bench  in first appeal number 152 of 1972 the judgment
having been delivered on december 12 1972.
the appellants are a firm registered under the partner-
ship act 1932 and inter alia carry on the business of
hire-purchase of automobile vehicles. the appellants were
the owners of a diesel truck companyplete with tools and other
accessories. on january 24 1962 respondent number 1 hired the
said truck from the appellants under a hire purchase agree-
ment in writing of the same date. under the said agreement
respondent number 1 agreed to pay to the appellants a sum of
rs. 10000 as initial hire charges and certain monthly hire
charges. it was provided under the said agreement that on
the payment of all the monthly hire charges and other
amounts payable under the agreement
on the respective due dates and fulfilment of the other
terms and companyditions of the agreement respondent number 1
would have the option to purchase the said truck. however
if any of the monthly hire charges were number paid or there
was a breach of any of the terms and companyditions of the
agreement the appellants were entitled to take possession
of the truck. until respondent number 1 validly exercised the
option to purchase the said truck the said truck was to
remain the property of the appellants. respondent number 2 is
the guarantor. respondent number 1 failed to pay the monthly
hire charges to the appellants as provided under the agree-
ment. in fact he paid only the initial hire of rs. 10000
and hire charges for one month only. giving up certain
claims for damages and other items the appellants filed a
suit in the companyrt of civil judge  senior division  at nagpur
for recovery of a sum of rs. 13422.23 p against the re-
spondents. several issues were framed by the learned trial
judge and they were all decided in favour of the appellants. however the learned trial judge dismissed the suit on the
ground that it was number maintainable in view of the provi-
sions of section 69 2  of the partnership act 1932. the
appellants preferred an appeal against this decision to the
bombay high companyrt  nagpur bench . the said appeal was
however dismissed by the high companyrt upholding the view of
the learned trial judge regarding the number-maintainability of
the suit. it is against this decision that the present
appeal is directed. in order to appreciate the companytroversy before us it is
necessary to take numbere of a few further facts numbere of which
is disputed. the appellant-firm was registered under the partnership act
1932 on numberember 2 1960. there was a change in the companysti-
tution of the firm on july 1 1962 but we are number companycerned
with that change. what is material is that on july 1 1967
there was anumberher change in the companystitution of the firm
whereby two of the then partners retired and one new part-
ner namely smt. sarita agrawal joined as a partner of the
said firm and two minumbers namely ashish kumar and rohit
kumar were admitted to the benefits of the said partnership
firm. on the said date namely july 1 1967 two of the then
partners namely smt. sheela r. agrawal and shri ramkishan
retired as aforestated from the said partnership firm. the
suit was instituted on july 22 1968. the numberice regarding
the change in the companystitution of the said firm as aforesaid
was given to the registrar of firms on august 28 1968 and a
numbere was taken of the said change in the register of firms
subsequently. thus as pointed out by the learned trial
judge on the date when the suit was filed two partners
shown as partners in the appellant-firm in the relevant
entries in the register of firms had
already retired one new partner had joined the said firm
and two minumbers had been admitted to the benefit of the said
partnership firm and numbernumberice had been given to the regis-
trar of firms in respect of these changes. the numberice re-
garding these changes was given to the registrar of firms
subsequently and numbered on numberember 19 1968.
section 69 of the said partnership act deals with the
effect of number-registration of firms. sub-section  2  of the
said section which is material for the purposes of this
appeal runs as thus
 2 . numbersuit to enforce a right arising from
a companytract shall be instituted in any companyrt by
or on behalf of a firm against any third-party
unless the firm is registered and the persons
suing are or have been shown in the register
of firms as partners in the firm. in the present case the suit filed by the appellants is
clearly hit by the provisions of sub-section  2  of section
69 of the said partnership act as on the date when the suit
was filed two of the partners shown as partners as per the
relevant entries in the register of firms were number in fact
partners one new partner had companye in and two minumbers had
been admitted to the benefit of the partnership firm regard-
ing which numbernumberice was given to the registrar of firms. thus the persons suing namely the current partners as on
the date of the suit were number shown as partners in the
register of firms. the result is that the suit was number
maintainable in view of the provisions of sub-section  2  of
section 69 of the said partnership act and the view taken by
the trial companyrt and companyfirmed by the high companyrt in this
connection is companyrect.


civil appellate jurisdiction civil appeal number 135 of 1958.
appeal from the judgment and order dated
september 4 1956 of the punjab high companyrt in civil writ
case number 325 of 1965.

a. palkhivala and j. b. dadachanji for the appellant. k. daphtary solicitor-general of india k. n. rajagopal
sastri and d. gupta for the respondents. 1960. september 27. the judgment of the companyrt was
delivered by
hidayatullah j.-the appellant firm l. hazarimal kuthiala of
kapurthala moved the high companyrt of punjab under art. 226 of
the companystitution for writs of prohibition certiorari quo
warranto etc. against the income-tax officer special
circle ambala and the companymissioner of income-tax punjab

himachal pradesh bilaspur and simla in respect of
reassessment of the income of the firm for the account year
1945-1946. the high companyrt dismissed the petition but
granted a certificate under arts. 132 and 133 of the
constitution and this appeal has been filed on that
certificate. the firm carried on business as forest lessees and timber
merchants at dhilwan in the former kapurthala state. in
that state an income-tax law was in force and prior to the
integration of the state on april 10 1947 the income of
the firm for the account year 1945-1946  samvat. 2002  was
duly assessed and the tax was also paid. subsequently
political changes took place kapurthala integrated into
what was knumbern as pepsu and the rajpramukh issued two
ordinances in samvat. 2005 by which all laws in force in
kapurthala including the income-tax law ceased to be
operative from august 20 1948. the two ordinances instead
applied laws in force in the patiala state to the area of
the new state which included kapurthala and the patiala
income-tax act 2001 came into force. later still the
indian finance act 1950  26 of 1950  applied the indian
income-tax act to the part b states which had emerged as a
result of political changes. section 13 of the indian
finance act 1950 repealed the income-tax laws obtaining in
the area of the part b states except for the purposes
of levy assessment and companylection of income-tax and super-
tax in respect of the period defined therein. on march 12 1955 the income-tax officer special circle
ambala issued a numberice purporting to be under s. 34 of the
patiala income-tax act of samvat. 2001 to the appellant firm
calling upon it to file a return of its income and total
world income because he had reason to believe that the
income had been underassessed. previous to this on
numberember 4 1953 the companymissioner of income-tax punjab

himachal pradesh bilaspur and simla purporting to act
under s. 5 sub-ss.  5  and  7a  of the indian income-tax
act ordered that the assessment of the appellant firm would
be done by the income-tax officer special circle ambala
and number by the income-tax officer b-ward patiala who
ordinarily would be the companypetent authority under s. 64 of
the indian income-tax act to assess the appellant firm. the
appellant firm raised objections but failed and then filed
the petition under art. 226 of the companystitution out of
which the present appeal arises. numerous objections were taken in respect of the companypetency
of the proceedings before the taxing authorities but some
of them are numberlonger pressed. an argument under art. 14 of
the companystitution has number been abandoned though it figured
at earlier stages of the present case. a second point that
the reassessment cannumber be made under the patiala in. companye-
tax act is number in dispute because the respondents before us
stated that the reassessment if any would have to be done
in accordance with the kapurthala law as it existed in the
assessment year  samvat. 2002 . a third argument namely
that the words of s. 13 of the indian finance act 1950 did
number include reassessment has also been abandoned in view
of the decisions of this companyrt in lakshmana shenumber v. the
income-tax officer ernakulam  1  and the income-tax
officer bangalore v. k. n. guruswamy  2 . only one point
has been pressed before us and it is that the income-tax
officer special circle ambala had numberjurisdiction to
issue a numberice under s. 34 and
 1  1959 s.c.r. 751.  2  1959 s.c.r. 785.
that only the income-tax officer b-ward patiala was the
competent authority. reliance is placed in this companynection
upon the provisions of s. 64 1  of the indian income-tax
act under which the locally situated income-tax officer
would have had jurisdiction in this case. the transfer of
the case by the companymissioner of income-tax by his order
dated numberember 4 1953 is characterised as ultra vires and
incompetent and it is this argument alone to which we need
address ourselves in this appeal. the patiala income-tax act companytained provisions almost
similar to ss. 5 5  and 5 7a  of the indian income-tax act. sub-section  5  differed in this that the companymissioner of
income-tax was required to companysult the minister-in-charge
before taking action under that sub-section. the only
substantial difference in the latter sub-section was that
the explanation which was added to s. 5 7a  of the indian
income-tax act as a result of the decision of this companyrt in
bidi supply company v. union of india  1  did number find place in
the patiala act. the companymissioner when he transferred this
case referred number to the patiala income-tax act but to the
indian income-tax act and it is companytended that if the
patiala income-tax act was in force for purposes of
reassessment action should have been taken under that act
and number the indian income-tax act. this argument however
loses point because the exercise of a power will be
referable to a jurisdiction which companyfers validity upon it
and number to a jurisdiction under which it will be nugatory. this principle is wellsettled. see pitamber vajirshet v.
dhandu navlapa 2 . the difficulty however does number end there. the
commissioner in acting under s. 5 5  of the patiala income-
tax act was required to companysult the minister-in-charge. it
is companytended that the central board of revenue which under
the indian finance act 1950 takes the place of the
minister-in-charge was number companysulted and proof against the
presumption of regularity of official acts is said to be
furnished by the fact that under the indian law numbersuch
consultation was necessary and the companymissioner having
purported
 1  1056 s.c.r. 267.  2  i.l.r. 12 bom. 486 489.
to act under the indian law companyld number have felt the need of
consultation with any higher authority. this perhaps is
correct. if the companymissioner did number act under the patiala
law at all which enjoined companysultation with the
minister-in-charge and purported to act only under the
indian law his mind would number be drawn to the need for
consultation with the central board of revenue. even so
we do number think that the failure to companysult the central
board of revenue renders the order of the companymissioner
ineffective. the provision about companysultation must be
treated as directory on the principles accepted by this
court in state of u. p. v. manbodhan lal srivastava  1  and

s. srinivasan v. union of india  2 . in the former case
this companyrt dealt with the provisions of art. 320 3  c  of
the companystitution under which companysultation with the union
public service companymission was necessary. this companyrt relied
upon the decision of the privy companyncil in montreal street
railway companypany v. numbermandin  3  where it was observed as
follows
 the question whether provisions in a
statute are directory or imperative has very
frequently arisen in this companyntry but it has
been said that numbergeneral rule can be laid
down and that in every case the object of the
statute must be looked at. the cases on the
subject will be found companylected in maxwell on
statutes 5th ed. p. 596 and the following
pages. when the provisions of a statute
relate to the performance of a public duty and
the case is such that to hold null and void
acts done in neglect of this duty would work
serious general inconvenience or injustice to
persons who have numbercontrol over those
entrusted with the duty and at the same time
would number promote the main object of the
legislature it has been the practice to hold
such provisions to be directory only the
neglect of them though punishable number
affecting the validity of the acts done. the principle of the privy companyncil case was also applied by
the federal companyrt in biswanath khemka v. the king emperor
 4  and there as pointed out by this
 1  1058 s.c. r. 533.

l.r. 1917 a.c. 170.  2  1958 s.c.r. 1295 1321.  4  1945 f.c.r. 99.
court the words of the provision were even more emphatic
and of a prohibitory character. the essence of the rule is
that where companysultation has to be made during the
performance of a public duty and an omission to do so
occurs the action cannumber be regarded as altogether void
and the direction for companysultation may be treated as
directory and its neglect as of numberconsequence to the
result. in view of what has been said in these cases the. failure to companysult the central board of revenue does number
destroy the effectiveness of the order passed by- the
commissioner however wrong it might be from the
administrative point of view. the power which the
commissioner had was entrusted to him and there was only a
duty to companysult the central board of revenue. the failure
to companyform to the duty did number rob the companymissioner of the
power which he exercised and the exercise of the power
cannumber therefore be questioned by the assessee od the
ground of failure to companysult the central board of revenue
provision regarding which must be regarded as laying down
administrative companytrol and as being directory. learned companynsel however companytends that even if all this be
decided against him he is still entitled to show that the
transfer of the case can only take place under sub-s.  7a
of s. 5 and number under sub-s.  5 . according to him the
former subjection deals with the transfer of individual
cases and that inasmuch as there was numberpending case at the
time then as was ruled by this companyrt in the bidi supply
case  1  the transfer companyld number be valid. in the absence
of an explanation similar to the one added to the indian
income-tax act he companytends that a case which was number
pending companyld number be transferred under sub-s.  7a . he
contends also that sub-s.  5  deals number with the transfer of
individual cases but with the distribution of work. the two sub-sections of s. 5 of the patiala income-tax act
read as follows

income-tax officers shall perform their functions in
respect of such persons or classes of persons or of such
incomes or classes of income or in respect of
 1  1956 s.c.r. 267.
such areas as the companymissioner of income-tax may in
consultation with the minister incharge direct and where
such directions have assigned to two or more income-tax
officers the same persons or classes of persons or the same
incomes or classes of income or the same area in accordance
with any orders which the companymissioner of income-tax may in
consultation with the minister incharge make for the
distribution and allocation of work to be performed. the
minister incharge may with the previous approval of the
ljlasi-khas by general or special order in writing direct
that the powers companyferred on the income-tax officer by or
under this act shall in respect of any specified case or
class of cases be exercised by the companymissioner and for
the purposes of any case in respect of which such order
applies references in this act or in any rules made
hereunder to the income-tax officer shall be deemed to be
references to the companymissioner.  7a  the companymissioner of income-tax may transfer any case
from one income-tax officer subordinate to him to anumberher
and the minister incharge may transfer any case from any one
income-tax officer to anumberher. such transfer may be made at
any stage of the proceedings and shall number render necessary
the re-issue of any numberice already issued by the income-tax
officer from whom the case is transferred. there can be numberdoubt that sub-s.  7a  authorises the
commissioner to transfer individual cases. the words any
case from one income-tax officer subordinate to him to
anumberher  such transfer may be made at any stage of the
proceedings etc. clearly indicate this. sub-section  7a
is however number applicable here because in respect of the
cognate sub-section of the indian income-tax act it was
ruled by this companyrt that it companyld apply to a pending case
only. it was to overcome this lacuna that the explanation
was added by the indian parliament. this amendment came in
1956 and the patiala act did number include a similar
explanation because prior to 1956 the question had number
arisen. there is one other difference between the patiala
act and the indian act. whereas sub-s.  7a  was introduced
in the indian act by an
amendment the companyresponding sub-section was enacted at the
same time as the rest of the patiala act. number it is quite clear that a case which was number pending at
the time of transfer companyld number be transferred under sub-s.
 7a  of s. 5 of the patiala act. the same reasoning must be
applied to that subsection as it was applied to the indian
act. learned companynsel referred us to an affidavit by the
under secretary central board of revenue reproduced in
pannalal binjraj v. union of india  1  which stated the
reason for the introduction of sub-s.  7a . it is a little
difficult to accept the affidavit as an aid to find out the
intention why a particular law or amendment was enacted
more so where the affidavit companycerns quite anumberher act of a
different legislature. it is however pertinent to
remember that sub-s.  7a  expressly gave the power to
transfer pending cases but said numberhing about cases which
were riot pending. the power to transfer such cases before
they came into being must therefore be found in some other
enactment. the department companytends that it would fall
within sub-s.  5  of s. 5 and points out that this companyrt
was number required to companysider that sub-section because the
transfer of the cases dealt with in the bidi supply case  2
was by an authority number named in sub-s.  5  and therefore
the transfer in those instances companyld number be held to be
under that sub-section. the department companytends that the
commissioner of income-tax is mentioned both in sub-s.  5
and sub-s.  7a  and companyld derive his power from one or the
other or both. the short question thus is whether an individual case which
was number a pending case companyld be transferred from one income-
tax officer to anumberher under sub-s.  5  of s. 5 of the
patiala act which was kept alive for assessment and
reassessments relating to previous assessment years. mr.
palkhivala argues that the words of the sub-section such
persons or classes of persons or of such incomes or classes
of income or in respect of such areas denumbere by the
plural employed a dealing with a group rather than
 1  1957 s.c.r. 233. 246.  2  1956 s.c.r. 267.
an individual case. he further companytends that if individual
cases were held to be included in sub-s.  5  then sub-s.
 7a  would be unnecessary and otiose. he argues that
harmonious companystruction thus requires that the two sub-
sections must be taken to companyer different situations. the last argument is hardly open after the decision of this
court adverted to already. if pending cases alone were
within sub-s.  7a  those cases which were number pending companyld
number be said to have been provided for there. there is thus
numberoverlapping at least in so far as cases number pending were
concerned. an arrangement for their disposal would be a
subject of distribution of work and numberhing much turns upon
the employment of the plural number because the plural
includes the singular. indeed a single case might well be
in a class separate from others. duplication of powers is
sometimes numbericeable in statutes and does number destroy the
effectiveness of the powers companyferred. section 24 of the
civil procedure companye dealing with transfers of cases and the
provisions of the letters patent of the high companyrt are
instances in point. if a particular action is valid under
one section it cannumber be rendered invalid because the
identical action can also be taken under anumberher section
and it makes numberdifference if the two empowering provisions
are in the same statute. in any event sub-s.  7a  would
cut down sub-s.  5  only to the extent the former provides
and it has been held that it was companyfined to pending cases
only. sub-section  5  was thus available for cases which
were number pending and the case which was the subject-matter
of the companymissioners order was number a pending case. mr. palkhivala companytends that sub-s.  5  merely enables
distribution of work and does number deal with transfers. but
where a case is number pending an order relating to it may
take the form of transfer or an arrangement for its
disposal. there is numberhing to prevent the companymissioner
acting under sub-s.  5  to arrange that the case of an
assessee shall be disposed of by a particular income-tax
officer. the words of
sub-s.  5  that income-tax officers shall perform their
functions in respect of such persons as the companymissioner may
direct only show that the companymissioner may direct that one
income-tax officer shall number and anumberher income-tax officer
shall perform the functions in respect of such and such
person or persons. the plural including the singular the
order of the companymissioner was valid because he arranged and
distributed work and did number seek to transfer any case. it
is however companytended that this renders sub-s.  7a  otiose.