Frederick William Gentle, C.J.
1. This is an appeal against the dismissal by Kunhi Raman, J., of an application for an order under Section 45 of the Specific Relief Act, analogous to the high prerogative writ of mandamus. The appellant company was the applicant; the respondent is the Road Traffic Board, Madras, which was constituted by the Provincial Government pursuant to Section 44 of the Motor Vehicles. Act, 1939 (hereinafter called 'the Act'). Prayer (c) in the application solely arises in this appeal by which an order was sought directing the respondent to consider the applicant's application under Section 45 of the Act, dated 24th February, 1947, in accordance with the provisions of the Act, and the Rules made thereunder, for renewal of permits for a number of buses to ply for hire as stage carriages, and that the respondent should ignore the executive order issued by the Provincial Government, Madras, in G.O. No. 3898 (Home), dated 9th December, 1946. In dismissing the application the learned Judge directed there should be no order as to costs.
2. The appellant company carries on business in the Province of Madras, it provides road transport services in the City and throughout the Province for members of the public; it owns 565 transport vehicles (buses and lorries), employs about 4,000 persons, and has an annual turnover of about ninety lakhs of rupees. There are-prescribed routes for buses, each route has a serial number, the route concerned in this appeal being No. 16, which runs between two points within the City. A permit is required for each bus running upon a route, which is granted by the Regional Transport Authority (so designated in the Act), and is the respondent, called 'The Road Traffic Board, Madras.' Prior to February, 1947, the appellant held 24 permits for buses to ply for hire on route 16, granted by the respondent, pursuant to Sections 42, 45, 47, 48 and 58 of the Act, for three years expiring on 1st May, 1947. By Form P.R.A. (prescribed in the Rules made under the Act) dated 24th February, 1947, the appellant applied for a grant of fresh permits, or for renewals of the expiring permits, for the same number of buses; for route 16. The form of application and a cheque for Rs. 192, the fees payable, were sent to the respondent with the appellant's letter, dated 26th Febuary, 1947, requesting renewal for a period of 3 years. On 7th March, 1947, the respondent Board replied stating that
According to G.O. No. 3898, Home, dated 9th December, 1946, only temporary permits will be issued in lieu of renewal of the pucca permits. If you are aggreeable to treat the cheque referred to above as fee for issue of temporary permits for the 24 buses at Rs. 8 per vehicle, necessary action will be taken.
3. Section 62 authorises the grant of temporary permits for a period not exceeding 4 months for the use of transport vehicles for any one of three purpose specified in the section; the Act does not authorise the grant of temporary permits in any other instances. On 12th March, 1947, the appellant replied that the cheque for Rs. 192 might be considered as payment of fees for temporary permits but that was done under protest and without prejudice to any action which might be taken to dispute the validity of the instruction that only temporary permits would be issued. A document headed ' Proceedings of the Road Traffic Board, Vepery, Madras ' dated 28th April, 1947, was sent to the appellant by the Board in which reference is made to the appellant's application for 24 buses on route 16, and another application made by it for buses on 5 other routes for renewal of city stage carriage permits; the document records an 'order' that
The Board considered the applications from Sri Rama Vilas Service, Ltd., for renewal of their primary stage carriage permits, as detailed below, and rejected the applications in the interests of the public generally under Section 47 (a) of the Motor Vehicles Act, 1939;
details of the applications are then given. Section 47(1)(a) of the Act provides that the Regional Transport Authority (the respondent) shall, in deciding whether to grant or refuse a stage carriage permit, have regard to the interest of the public generally. The proceedings, by way of an application under Section 45 of the Specific Relief Act, out of which this appeal arises, were instituted on 28th April, 1947, the date of the respondent's intimation of rejection sent to the appellant. Pursuant to Section 64 and to Rule 147, an appeal lies from a decision of the Read Traffic Board (Regional Transport Authority) to the Central Board (Provincial Transport Authority, also constituted by the Provincial Government under Section 44); the appellant preferred an appeal under Rule 147 against the dismissal of its application for permits for 3 years; that appeal has not yet been heard, since it awaits disposal of the present appeal before it is to be decided.
4. It is now convenient to refer to the relevant provisions of the Act and the rules made thereunder:
Section 42. (1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place save in accordance with the conditions of a permit granted or countersigned by a Regional or Provincial Transport Authority authorising the use of the vehicle in that place in the manner in which the vehicle is being used.
(3) Sub-section (1) shall not apply--
(a) to any transport vehicle owned by or on behalf of the Central Government or a Provincial Government other than a vehicle used in connection with the business of an Indian State Railway.
(h) Subject to any prescribed conditions, to any transport vehicle owned by the Government of an Indian State or French or Portuguese bounded by India, used for Government purposes unconnected with any commercial enterprise.
Section 43. (1) A Provincial Government, having regard to--
(a) the advantages offered to the public, trade and industry by the development of motor transport, and
(b) the desirability of co-ordinating road and rail transport, and
(c) the desirability of preventing the deterioration of the road system, and
(d) the desirability of preventing uneconomic competition among motor vehicles and after having heard the representatives of the interests affected and having consulted the Provincial and Regional Transport Authorities concerned, may, by notification in the Official Gazette,
(i) prohibit or restrict throughout the province or in any area or on any route... the conveying of long distance goods traffic generally, or of prescribed classes of goods, by private or public carriers;
(ii) fix maximum or minimum fares or freights for stage carriages and public carriages to be applicable throughout the province....
Section 44. (1) The Provincial Government shall. constitute for the Province a Provincial Transport Authority...and shall...constitute Regional Transport Authorities....
(2) A Provincial Transport Authority or a Regional Transport Authority shall consist of such number of officials and non-officials as the Provincial Government may think fit to appoint; but no person who has any financial interest whether as proprietor, employee or otherwise in any transport undertaking shall be appointed as or continue as a member of a Provincial or Regional Transport Authority, and, if any person being a member of any such Authority acquires a financial interest in any transport undertaking, he shall, within four weeks of so doing, give notice in writing to the Provincial Government of the acquisition of such interest and shall vacate office.
Section 45. Every application for a permit shall be made to the Regional Transport Authority of the region or of one of the regions in which it is proposed to use the vehicle....
Section 47(1). A Regional Transport Authority shall, in deciding whether to grant or refuse a stage carriage permit, have regard to the following matters, namely:
(a) the interest of the public generally;
(c) the adequacy of existing road passenger transport services between the places to be served, the fares charged by those services and the effect upon those services of the service proposed;
(e) the operation by the applicant of other transport services and in particular of unremunerative services in conjunction with remunerative services; and shall also take into consideration any representations made by persons already providing road transport facilities....
Section 48. A Regional Transport Authority may, after consideration of the matters set forth in Sub-section (1) of Section 47,
(a) limit the number of stage carriages or stage carriages of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region;
(c) regulate timings of arrival or departure of stage carriages whether they belong to a single or more owners;
Section 57. (3) On receipt of an application for a stage carriage permit... the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date not being less than thirty days from such publication on which, and the time and place at which, the application and any representations received will be considered.
(5) When any representation such as is referred to in Sub-section (3) is made, the Regional Transport Authority shall dispose of the application at a public hearing at which the applicant and the person making the representation shall have an opportunity of being heard either in person or by a duly authorised representative.
(7) When a Regional Transport Authority refuses an application for a permit of any kind it shall give to the applicant in writing its reasons for the refusal.
Section 58. (1) A permit, other than a temporary permit, issued under Section 62, shall be effective without renewal for such period not less than three years and not more than five years, as the Regional Transport Authority may in its discretion specify in the permit.
(2) A permit may be renewed on an application made and disposed of as if it were an application for a permit.
Provided that, other conditions being equal, an application for renewal shall be given preference over new applications for permits.
Section 62. A Regional Transport Authority may at its discretion, and without following the procedure laid down in Section 57, grant permits to be effective for a limited period not in any case to exceed four months, to authorise the use of a transport vehicle temporarily
(a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or
(b) for the purposes of a seasonal business, or
(c) to meet a particular temporary need....
Section 64. Any person--
(e) aggrieved by the refusal of renewal of a permit, may, within the prescribed time and in the prescribed manner, appeal to the prescribed authority who shall give such person and the original authority an opportunity of being heard.
Section 68. (1) A Provincial Government may make rules for the purpose of carrying into effect the provisions of this Chapter:
(2) Without prejudice to the generality of the foregoing power, rules under this section may be made with respect to all or any of the following matters, namely:
(a) the period of appointment and the terms of appointment of and the conduct of business by Regional and Provincial Transport Authorities and the reports to be furnished by them;
(b) the conduct and hearing of appeals that may be preferred under this Chapter; the fees to be paid in respect of such appeals and the refund of such fees.
Pursuant to Section 68 the Madras Provincial Government made rules in which the Regional Transport Authority is called ' The Road Traffic Board' and the Provincial Transport Authority, 'The Central Board'. The relevant rules are:
Rule 147.--From every original decision of the Road Traffic Board an appeal shall lie to the Central Board within 30 days of the date of communication of such decision.
Rule 148.--From every original order passed by the Central Board there shall be an appeal to the Government within 30 days of the date of communication of such order.
Rule 150.--The Road Traffic Board and the Central Board 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.
5. The Provincial Government, as required by Section 44, duly constituted the respondent Board and the Central Board and, by Rules 147 and 148, it prescribed the appellate authorities under Section 64. By those rules, an appeal lies from a decision of the respondent Board to the Central Board but no further appeal lies from a decision in appeal given by the latter Board. Applications for permits and their renewals in respect of City buses are made to the respondent Board. The personnel of the respondent Board is five in number, four officials and one non-official.
6. Before discussing the matters arising in this appeal it is convenient to set cut G.O. No. 3898 dated 9th December 1946, to which reference is made in the letter dated 7th March, 1947, from the respondent Board to the appellant and which, in the appellant's application under Section 45 of the Specific Relief Act, it is sought should be ignored by the respondent Board.
GOVERNMENT OF MADRAS.
Abstract.
Motor Vehicles--Transport Services--Issue of Permits--Instructions.
G.O.No. 3898. Dated 9th December, 1946.
Read the following:
G.O. No. 187, Home, dated 26th January, 1943.
G.O. No. 1467, Home, dated 7th May, 1945.
Memorandum No. 34857-B/46-1, Home, dated 9th August, 1946.
Telegram No. 34857-B, Home, dated 2nd September, 1946.
Order.--In G.O. No. 1467, Home, dated 7th May, 1945, Government laid down that in future bus operators should be fleet owners having not less than 20 buses and under paragraph 2 of G.O. No. 187, Home, dated 26th January, 1943, the existing operator on a route should be given preference for providing any additional service on the route. These orders have created a system of monopolies and in the opinion of the Government, this monopolistic working of the bus traffic has not been to the advantage and convenience of the travelling public. G.O. No. 187, Home, dated 26th January, 1943 (paragraph 2) is accordingly cancelled and G.O. No. 1467, Home, dated 7th May, 1945, is hereby modified so as to require that each operator should have at least 3 buses and the resources and equipment necessary to run the service efficiently. The following further instructions are also issued for the guidance of the Transport Authorities:
(1) No bus unit now operating should have a monopoly for any area or route. The transport authorities may give further convenient timings in old routes to new units.
(2) When applications are made for new routes or new timings in existing routes new and small units may be preferred to old ones.
(3) Further permits should be issued with due regard to existing numbers of buses actually running and the condition of the road to be operated upon.
(4) In town and city services no permits should be given for taking buses through narrow streets.
(5) All permits to be given for buses for the present should be only temporary as Government intends to nationalise motor transport and want to inform all motor vehicle owners about this fact and the possible termination of their services in due course. A temporary permit should however be granted only by the Transport Authority and not by its Secretary and the application should be notified and representations heard as in the case of regular permits. This applies to all permits which have expired by virtue of notices issued under the Defence of India Rules as well as to renewal upon expiry of permits held by fleet owners.
2. Permits to be issued or renewed for lorries should also be temporary and subject to the conditions specified in paragraph 1(5) above.
7. At this juncture it is convenient to record that, whilst this appeal deals solely with the appellant's application for 24 permits for buses on one route in Madras City, nevertheless, vital interests of a large number of bus proprietors in. the province are concerned with the subject-matter of the appeal and are dependent upon the decision. It was stated by Dr. John, for the appellant, and it was not disputed, that ever since December, 1946, when the Government issued G.O. No. 3898, not a single application, of which there were many, for bus permits including renewals of existing permits, was granted by any Regional Transport Board; grants of temporary permits alone have been made.
8. Undoubtedly, and it was not argued to the contrary, G.O. No. 3898 was an order given by the Provincial Government, inter alia, to the Regional Transport Authority, the respondent in this appeal. Instruction (2) is in direct conflict with the proviso to Sub-section (2) of Section 58 which enacts that, other conditions being equal, an application for renewal shall be given preference over a new application for per-mits. Instruction (5) also ignores a statutory enactment since it forbids the grant of permits under Section 58 and directs that temporary permits, under Section 62 alone were to be granted; that instruction is to be followed even when an application for renewal of a permit is made by an existing permittee who, the Act enacts, must be given preference over applicants for new permits, if other conditions are equal. The sole aim and object of the G.O. No. 3898 was ultimately to accomplish the removal of all buses, then in operation and owned by private transport under-takings, from the road so as to enable buses, which the Government proposed to own but had not acquired when the G.O. was made, to take their places and to be free of competition. The effect of the order would be to put those proprietors out of businesses: that effect is emphasised by the direction in the G.O., that pre-ference should be given to new proprietors (units) owning few buses. But, whether new or old proprietors, only temporary permits should be granted whereby com-petition would be avoided with the Government's buses, if and when acquired. That aim and object was, as the G.O. states, to further the intention of the Government ' to nationalise motor transport.' The achievement of that aim and object was to be attained by the Government giving orders to a statutory body directing it how and in what manner it should deal with applications for bus permits. The statutory body, to whom those orders were given is one upon which the Act confers powers to exercise judicial or quasi-judicial functions when dealing with applications for permits and, in that behalf, requires that statutory body to follow the procedure and to pay regard to certain matters and to consider those applications in accordance with provisions contained in the Act and, it must follow, not otherwise.
9. In the affidavit of Mr. A.R. Jakeman, the secretary of the respondent Board, it is stated, in paragraph 3, that under the provisions of Rule 150, the respondent Board and the Central Board are subject to the orders of the Government and are bound to give effect to all orders passed by the Government, whether on appeal or otherwise; paragraph 4 adds that it was incumbent upon the respondent, in pursuance of the ordes contained in the Government Order, dated 9th December, 1946, to issue temporary permits and that the issue of 'pucca' permits would be to set at nought the Government Order which was lawfully made in pursuance of the powers conferred on the Government by Rule 150: paragraph 7 states that the tribunals (Road Traffic Board and the Central Board) are bound to obey the lawful orders of the Government passed in pursuance of powers reserved to it by the Act and the Rules.
10. At the date when G.O. No. 3898 was issued the Provincial Government was in course of inaugurating a transport business, to acquire buses and to use them on the roads and streets in the City and Province for which it did not intend to obtain permits on the ground that Sub-section (3) of Section 42 exempted it from the provisions of Sub-section (1) of that section requiring permits to be obtained by an owner to use transport vehicles in any public place. In paragraph 2 of Mr. Jake-man's affidavit, it is stated that in view of the fact that the Government of Madras had already taken a decision with reference to transport service and as the parti-culars relating to such scheme had (when the affidavit was sworn on 6th May, 1947) not yet been finally worked out, Government was not in a position to take over such service as and from 1st May (on which date, as above stated, the appellant's permits expired); the respondent therefore sanctioned temporary permits to the appellant in view of the abovesaid temporary need, under the order of Government. The temporary need, abovementioned, is stated, in paragraph 4, to be the necessity for continuing the bus services in the City without any dislocation, in respect of which need temporary permits could be granted pursuant to Clause (c) of Section 62.
11. The several statements in Mr. Jakeman's affidavit amount to this. The appellant had placed a number of buses on the roads for which permits had been granted in 1944 for three years expiring on 1st May, 1947; whilst the appellant's application for renewals should be given preference over new applications, pursuant to the proviso to Sub-section (2) of Section 58, but since the Government intended placing buses on the road, which were to be substituted for the appellant's buses, in anticipation of that intention, the appellant's application for renewals could not be granted, because the respondent Board was ordered by the Government to refuse the application for renewal of permits under Section 58(1)(requiring a grant for a minimum period of 3 years) and was bound to grant temporary permits only under Section 62 (for a maximum period of four months) because the Government's buses would not be ready and available for the convenience and need of the public at the date of the expiration of the appellant's permits. The respondent Board was bound to obey the order of the Government and to carry out its directions in furtherance of its intentions, by virtue of the provisions in the Act and Rules. Further, the non-availability of the Government buses, when the appellant's permits expired, occasioned a particular temporary need within Clause (c) of Section 62 and the grant of temporary permits met that need.
12. The points which have been argued in this appeal and which arise for consider-ation are whether:
1. The Provincial Government can be proprietors of buses plying for hire either with or without permits under the Act?
2. (a) Rule 150 of the Rules made by the Provincial Government, is valid and within its rule-making power contained in Section 68(1)?
(b) The respondent Board must act in accordance with the orders of the Provincial Government?
(c) G.O. No. 3898 has any legal warrant or authority and its terms must be obeyed by the Board?
3. The dismissal by the respondent Board of the appellant's application was in accordance with law?
4. The appellant has another and a sufficient remedy so as to disentitle it from recourse under Section 45 of the Specific Relief Act?
13. Dr. V.K. John contended that the Provincial Government cannot use a stage carriage upon the highway to ply for hire; it cannot do so without obtaining a permit, neither can it apply for a permit so to do. Reference was made to several sections of the Act which, it was argued reflect an impossibility of such use. It was pointed out that a Provincial Government is the authority empowered by Section 43(1) to decide the matters therein specified, including the desirability of preventing uneconomic competition among motor vehicles, and to issue orders, by notifications, with regard to those matters. Thus, the contention was, the Government cannot, at the same time, be the proprietor of motor vehicles, in respect of which it has to make such decisions and issue notifications. The powers conferred upon the Government by Section 43(1) relate to transport vehicles, and their use, as a whole, and not to any particular vehicles or their ownership; any decision made and notifications issued must be with respect to all buses and other kinds of transport and must apply to all proprietors. Next, it was pointed out, that Section 44(1) mandatorily requires the Government to constitute a Provincial Transport Authority and Regional Transport Authorities; Sub-section (2) specifies the personnel of those bodies, consisting of officials and non-officials, and prohibits a person, who has a financial interest, whether as proprietor, employee or otherwise, in any transport undertaking, from appointment as a member of those bodies; it was argued that, if a Provincial Government owns a transport undertaking, its officials are employees and, as such, are thereby disqualified, from membership of those bodies and, thus, the provisions of the Act cannot be carried into effect since officials cannot be appointed as members.
14. Whilst the employees of a transport undertaking are disqualified, it would be carrying to the extreme that disability against all officials, e.g., a Forest Officer, a Collector of a District or a Hospital Medical Officer, of a Government owning such undertaking in respect of those officials who are unconnected with it. The two Boards are statutory bodies of which a Provincial Government is the constituting authority: when it has discharged its power by constituting those Boards; and made rules relating to appointments to them it has discharged its functions in that connection and the Boards must then be left in the performance of the duties; cast upon them by the Act. Regarding the right of a Provincial Government to own buses and to use them without permits, it was argued that a decision by a Regional Transport Board, under Section 47(1), regarding, for instance [Clause (c)] the adequacy of existing road passenger transport, and the exercise of the power, under Section 48 (a), limiting the number of stage carriages, would be unavailing if the Government could place as many buses on the road as it liked and disregard the Board's decision and limitation. Similar objections were suggested regarding contract vehicles, e.g., taxi-cabs, the subject-matter of Sections 49, 50 and 51 of the Act. The statutory provision, requiring permits to use transport vehicles, is contained in Sub-section (1) of Section 42. Sub-section (3) of that section enacts that Sub-section (1) shall not apply [Clause (a)] to any transport vehicle owned by or on behalf of the Central Government or a Provincial Government other than a vehicle used in connection with an Indian State Railway. The concluding words of the Clause clearly relate to the Central Government, since no Provincial Government owns a railway. The exception in Clause (a) is expressed in unambiguous language and relates to any transport vehicle owned by a Provincial Government. Clause (h) of Sub-section (3) is instructive and of assistance in the ascertainment of the meaning and effect of Clause (a). Clause (h) exempts from the provisions of Sub-section (1) of Section 42 any transport vehicle owned by the Government of an Indian State or French or Portuguese Settlement used for Government purposes unconnected with any commercial enterprise. The five concluding words are absent from Clause (a): if it had been intended to limit the exemption in that clause, to the same extent as the exemption in Clause (h), those words would have been included; the absence of them reflects there was not the same intention regarding a transport vehicle to which Clause (a) applies as there was to one covered by Clause (h). If Dr. John's argument be correct, then the words in Clause (a) ' other than a vehicle used in connection with the business of an Indian State Railway ' must be presumed or inferred to include the words ' and in connection with any commercial enterprise ' or words to a like effect. There is no warrant or reason for any such presumption or inference, more especially in light of the presence of those words in Clause (h) and the absence of them in Clause (a). There may be anomalies and peculiarities, pointed out by Dr. John, which arise when a Pro-vincial Government owns and uses stage carriages on the highway and, perhaps, such state of affairs was not envisaged when the Act was passed. Be that as it may, the terms of Clause (a) of Sub-section (3) are wide and the exception to the application of Sub-section (1) of Section 42 is with respect to any transport vehicle owned by a Provincial Government. Transport vehicles can be owned by a Pro-vincial Government and, in my view, there is nothing in the Act which forbids their use as buses and when so used, no permits for them are required. It is to be observed that, in respect of transport vehicles owned by a Provincial Government, Section 42(1) alone is made applicable but not any other provisions of the Act. The observation of Chagla, J., in Lady Dinbai Petit v. M.S. Noronha : AIR1946Bom407 can be quoted in this connection; at page 271, he said
The parties here...is not the Crown but it is the Government and fortunately these Courts are not Government Courts. If the King is expected to respect the decision of the Courts, much more so are we entitled to expect that Government would respect the decision of the Court.
15. Substituting, for the words ' decision of the Court', the words ' Motor Vehicles. Act ', the observation is peculiarly in point in the present instance.
16. I come, now, to consider the validity of Rule 150 and the matters connected with it, including G.O. No. 3898. Section 68(1) empowers the Provincial Government to make rules for the purpose of carrying into effect the provisions of Chapter IV (Sections 42 to 68) of the Act. The Central Transport Board and a Regional Transport Board are statutory bodies endowed with judicial or quasi-judicial functions. Section 44 empowers a Provincial Government to constitute those bodies and Section 68(2)(a) and (b) empower it to make rules with respect to the period and terms of appointment and the conduct of business by the Boards. The learned Advocate-General, on behalf of the respondent Board, conceded, quite properly, that the rule-making power, regarding conduct of business, does not enable the Government to direct the Boards when they dispose of their business. Section 43(1) is the only section which empowers the Government to order, by means of a notification, any act to be done or performed; that power can only be exercised after due enquiry and is limited to prohibiting long distance goods traffic and fixing maximum and minimum fares and freight: Sections 65 and 67 empower the Government to make rules and regulations relating to the working hours of drivers of vehicles and the conduct of drivers and passengers; and Section 68 empowers the making of rules, for the purpose of carrying into effect the provisions of the Act. Nowhere in the Act is there any express provision by which the two statutory Boards must act in accordance with the orders of the Government and there is nothing in those three Sections, nor elsewhere in the Act, from which it can be implied that the Government can, by order, direct the two Boards in the: exercise of their judicial and other functions. The Boards are completely inde-pendent, unfettered by the Government save that they must observe notifications made pursuant to Section 43. That independence of action is essential for the proper discharge of their statutory duties and, indeed, in the interests of justice. If, as Rule 150 provides, the two Boards 'shall' be subject to the orders of the Government in all matters, their functions would cease to be independent or, indeed, operative, and they could not discharge their statutory duties, e.g., a Regional Transport Authority holding an enquiry under Section 57(5) as a judicial or quasi-judicial tribunal. In that circumstance the Board would be merely a conduit pipe to convey the orders of the Government, e.g., to notify an applicant for permits that the Government forbade their being granted, which, in effect, is what took place in the present instance.
17. The learned Advocate-General sought to place some reliance upon the concluding words of Rule 150 ' whether on appeal or otherwise ' pointing out that, under Rule 148, the Government is the appellate tribunal. Consequently, it was contended, it could give orders to the two Boards. It is, however, to be observed that the Government is neither the direct nor the ultimate appellate authority from a decision by a Regional Board. I am quite unable to follow the argument; if and when the Government acts as an appellate tribunal, it has judicial functions to perform which must be discharged in a proper manner, but those functions do not include giving orders to any Board, neither the Board from whose decision a person aggrieved may have a right of appeal to the Government nor a Board whose decision is not subject to appeal to the Government. At the same time, it was conceded that the sole rescript for G.O. No. 3898 is Rule 150. That order contains no reference whatever to matters of appeal; and, as pointed out already, it contains express instructions which directly conflict with the provisions of the Act. The power conferred by Section 68, to make rules, is solely for the purpose of carrying out the provisions of the Act; it must follow that the rules can be used only for the same purpose. A rule must not be made or used to obstruct and prevent those provisions from being operative. In my view, and I have no doubt, Rule 150 is not within the rule-making power under Section 68 and it is invalid and ultra vires and without any force or effect.
18. In regard to G.O. No. 3898 the authority, namely, Rule 150 by which its correct-ness and its validity were sought to be established, is itself invalid. The mischief which the G.O. has occasioned is manifested when it is remembered that a Regional Transport Board has not considered, on its merits and in accordance with the Act, a single application for a three years' or five years' permit and has granted none ever since the G.O. was issued in December, 1946. An examination of the records of the respondent Board, which were placed before us by agreement between coun-sel, reflect that many applications made after December, 1946, were summarily rejected solely on the ground of the instructions contained in the order. The intention of the G.O., reflected by its terms, was that applications for 'pucca' permits should be refused peremptorily since it directed that only temporary permits should be granted; that was to deny applicants the right, conferred upon them by the Act, of having their applications considered on the merits and in accordance with the statutory provisions, after the prescribed procedure had been followed. The learned Advocate-General suggested that G.O. No. 3898 was issued in the inter-ests of the public, but there is an entire absence of any reference to those interests in it. The expression ' interests of the public ', which is found in the Act, relates to the interests of the travelling public, for whose convenience and need stage carriages are provided. The manner in which the interests of that public were benefited by the G.O. was not explained.
19. In my opinion the G.O. was issued without any right or authority and it was naked of any legality and the Boards were under no obligation to obey it.
20. The dismissal of the applicant's application by the respondent Board has now to be examined. Sub-section (3) of Section 57 prescribes the procedure to be observed by a Regional Transport Authority on receipt of an application for a stage carriage permit; the use of the word ' shall ' in two places in the sub-section makes it mandatory for the prescribed procedure to be followed. Sub-section (1) of Section 47 specifies the matters to which the Board must pay regard and take into consideration when deciding whether to grant or to refuse a permit; the word ' shall ' is, also, used in that sub-section. When dismissing the appellant's application the Board did not follow the procedure laid down by Section 57(3) and they did not pay any regard to the matters which Section 47(1) requires, both of those provisions being mandatory; and the appellant was given no opportunity of being heard, which right Section 57(5) affords to an applicant when representation is made to the Board against the grant of his application. If it could have any semblance of legality, the G.O. was a representation by the Government within the contemplation of Section 57(3) and (5). The Board's letter, dated 7th March, 1947, was, the expression of a refusal even to accept and to entertain the appellant's application, giving as the reason, G.O. No. 3898 made by the Government. This action by the Board was a gross violation of the provisions of the Act and a grave misconception of its duties and obligations. It would seem that the refusal to accept and to entertain the application must have been thought wrongful by the Board itself, since, later, there was a purported dismissal of it on 18th April, 1947, reflecting that it was then appreciated that, when once made, an application could not be refused but required disposal. The reason given for the rejection, namely, ' the interests of the public ', is devoid of explanation or reason and, the use of that expression was made in an endeavour to show some conformity with the provisions of the Act requiring a ground for dismissal to be stated. How it could be in the interests of the travelling public for a permit to be refused when no other transport was available--the Government's buses not being ready for service--is difficult to imagine. It is manifest that the appellant's application was dealt with solely by reference to, and after consideration of, extraneous matters and not in accordance with the requirements of the Act.
21. The whole circumstances connected with the disposal of the appellant's application were completely wrongful and illegal and reflect a withholding, and a denial, of right and justice. The Board did not follow the procedure laid down in Section 57(3), it did not pay regard and give consideration to the matters set out in Section 47(1), both those provisions being mandatory, and no enquiry was held as prescribed in Section 57(5) which is essential when any representation is made against the grant of an application for permits. All those provisions in the Act were ignored. The Board failed in every respect to carry out its statutory duties and obligations; to observe the relevant and mandatory provisions of the Act; to deal with the appellant's application as required by law; and to realise its obligations' as a statutory body. The dismissal of the application was occasioned solely by a meek and supine submission to the orders of the Government contained in G.O. No. 3898. There was no consideration or disposal of the appellant's application, as the Act required, and the actual position is that it has never been heard and deter-mined.
22. Although a finding upon the grant of the temporary permits to the appellant is not necessary for the purpose of the present appeal, nevertheless, a few words upon that matter are not out of place. The sole authority for grant of such permits is Section 62 and only when a circumstance, therein specified exists and for no longer than four months. No attempt was made to justify the grant by virtue of Clauses (a) and (b) of the section but it was argued that Clause (c) has application. That Clause enables a temporary permit to be granted ' to meet a particular tempo-rary need '. It was suggested that the ' particular temporary need ' was the non-availability of the Government buses at the date when the appellant's three years' permits expired on 1st May, 1947, and that need was met by granting a temporary permit for the appellant's buses to ply for hire during the period preceding the date when the Government hoped to obtain its vehicles and put them into use. Incidentally it was stated, during the course of argument, that the Government's buses had not materialised within four months of the grant of the temporary permits -which have been renewed once and may be they will again be renewed. If some private enterprise, instead of the Government, had been making preparations to place buses on the road but the necessary vehicles were not expected to be ready when the appellant's three years' permits expired, it is beyond doubt that the same course would not have been taken by the Board, nor, indeed, by the Government, as occurred in the present instance. There was not a particular temporary need -within the meaning of the Act which empowered the grant of temporary permits. The grant of temporary permits was misusing the provisions of the Act solely for the benefit of the Government and to prevent criticism and objection by the travelling public. The whole circumstance of the grant was improper in the extreme.
23. Lastly, the question arises whether there is any other and sufficient remedy available to the appellant to enable it to repair the wrong to which it has been subjected. It was contended that the appeal provided by Rule 147, to the Central Board is such remedy.
24. Firstly, it is the case of the respondent Board that the Central Board is bound to give effect to all orders passed by Government (vide paragraph 3 of Mr. Jakeman's affidavit); that being so, then the illegality with which the appeal would be treated is manifest; it certainly would not be effective. But that is not the sole consideration. Secondly, the respondent Board has not dealt with the appellant's application at all, as required by law. The relief under Section 45 of the Specific Relief Act is analogous to that of mandamus in England and decisions of the Courts of that country, relating to mandamus are applicable in India (vide Bannerjee v. Simonds : AIR1947Cal307 . In The Queen v. Bowman (1898) 1 Q.B. 663 a decision, in an application for a justice's licence to sell intoxicating liquor, was influenced by extraneous considerations and a writ of mandamus was sought; at page 667 Wills, J., observed:
There has been no real hearing, and the mandamus must, therefore, go.
25. A decision to the same effect is found in The Queen v. Cotham (1898) 1 Q.B. 802 also relating to the grant of a justice's licence, where Wills, J., observed at page 807
I have no doubt that a mandamus is the proper remedy.
26. In The King v. The Mayor, etc., of Stepney (1902) 1 K.B. 317 a local authority abolished the office of vestry clerk, whereupon compensation became payable to the dispossessed officer; the local authority, feeling bound by an ascertained practice, deducted one-fourth of the amount of compensation laid down by a statute; it was held that mandamus would lie to compel the local authority to take the facts of the case into consideration and to exercise a discretion in the matter. Convenient reference can be made, also, to a decision in India, in Ratanshaw Nusserwanji Todiwalla v. McElhinny I.L.R. (1942) Bom. 259 there, a toddy tapping licence was refused in the mistaken belief that the directions or orders of the Provincial Government regarding prohibition had to be obeyed; an order was made under Section 45 of the Specific Relief Act to hear and determine the application.
27. The appellant's application was not dealt with in the way which the Act required, the disposal of it was made solely by reference to extraneous and illegal matters, the provisions of the Act were ignored in their entirety and there was no-real consideration given to the application. In my view the appellant's sole and correct remedy is the one provided by the section.
28. In my opinion, for the reasons given, the appeal should be allowed; the dis-missal by Kunhi Raman, J., of the appellant's application under Section 45 of the Specific Relief Act and his order as to costs should be set aside; the respondent Board will be ordered to hear and determine the appellant's application for bus-permits, in accordance with law and in conformity with this judgment; and the appellant will be paid his costs of the appeal and of the proceedings out of which it arises.
Bell, J.
29. I agree.