Indian Kanoon - Search engine for Indian Law

Mr. Pathak for respondent No. 1 has relied on a recent decision of this Court in K.M. Shanmugam v. The S.R.V.S. (P) Ltd.(1) in support of his contention that the error committed by the Appellate Tribunal really amounted to a contravention of s. 47 of the Act. He argues that the Appellate Tribunal was (1) [1964] 1 S.C.R. 809.

under an obligation, in considering the question about the grant of a permit, to take into account the interests of public generally under s. 47(a) and inasmuch as the Appellate Tribunal has ignored the fact that 'respondent No. 1 owns a workshop at Chidambaram and thereby has refused his application for a permit, the interests of the,public generally have been sacrificed. This argument prima facie appears to be far-fetched and fanciful; but Mr. Pathak urges that the observations made by this Court in the case of K.M. Shanmugum are in his favour. In our opinion, the said decision does not lend any assistance to Mr. Pathak's contention. In that case, this Court was satisfied that "the Tribunal made a clear error of law inasmuch as it held that in the case of the first respondent, as it had a branch at Kumbakonam, its other branch at Manmargudi should be ignored." The judgment shows that this Court took the view that it was obviously an untenable proposition to hold that even if a company has a well-equipped office on a route in respect of which a permit is applied for, it shall be ignored if the company has some other branch somewhere unconnected with that route, and it was observed that was precisely what the Appellate Tribunal had held and that, according to the Court, clearly was an error apparent on the face of the record. It is in that connection that this Court referred to the mandatory provisions of s. 47. We do not think that this decision can be legitimately pressed into service by Mr. Pathak in the present case. It is only after it is proved that respondent No. 1 had a workshop at Chidambaram that any subsequent question about the interests of the public generally can possibly arise. If, as in the present case, the Appellate Tribunal has held that respondent No. 1 did not own a workshop at Chidambaram, no consideration of public interests can arise at all, and it is with this question that the present writ proceedings are concerned. We ought to add that the decision in the case of K.M. Shanmugam cannot justify a party whose application for permit has been rejected by the authorities under the Act, to move the High Court under Art. 226 and invite it to consider all questions of fact on the plea that the decision on the said questions of fact may assist him to invoke the provisions of s. 47. That clearly is not the effect of the said decision. Mr. Pathak has also urged that even if we come to the conclusion that the High Court was not competent to issue a writ in the present proceedings, having regard to the nature of the questions raised before it by respondent No. 1, we should not reverse the decision of the High Court under Art. 136 of the Constitution. The jurisdiction of this Court under Art. 136, though very wide, is exercised by the Court in its discretion, says Mr. Pathak, and he contends that where the order under appeal furthers the ends of justice, we should not reverse the said order on technical grounds. We are not impressed by this plea. It may be conceded that in a proper case this Court may refuse to exercise its jurisdiction under Art. 136 where the interests of justice patently indicate the desirability of adopting such a course; but we do not see how a plea of such a kind can be entertained where it is clearly shown that the impugned orders passed by the High. Court are without jurisdiction. If Mr. Pathak's argument were to be accepted, in a majority of cases if the High Court interfered with questions of fact in issuing writs of certiorari against the decisions of special Tribunals, it may always be urged that what the High Courts have done is in the interests of justice and this Court should not interfere with the decisions of the High Courts. In the circumstances of the present case, we do not see how considerations of justice can really arise. The Tribunals of fact have found that respondent No. 1 does not own a workshop at Chidambaram and having regard to the other relevant circumstances which the Tribunals have considered, the fact that he does not own a workshop at Chidambaram has ultimately proved decisive against respondent No. 1 and in favour of the appellant. If that be so, a decision based on facts found by the Tribunal cannot be reopened on the plausible plea that a further enquiry should be made because that would be just. If findings of fact were allowed to be disturbed by High Courts in such writ proceedings, that may lead to an interminable search for correct findings and would virtually convert the High Courts into Appellate Courts competent to deal with questions of fact. That is why we think, in entertaining petitions for writs of certiorari, it is necessary to remember that findings of fact recorded by special Tribunals which have been clothed with jurisdiction to deal with them, should be treated as final between the parties, unless, of course, it is shown that the impugned finding is based on no evidence. Therefore, we do not think the plea made by Mr. Pathak that in the interests of justice we should refrain from setting aside the order under appeal, can be upheld.

SUBBA RAO J.--I have had the advantage of perusing the judgment of my learned brother, Gajendragadkar J. I cannot agree. The facts lie in a small compass and they are as follows:The State Transport Authority, Madras, called for applications for the grant of two stage carriage permits on the route Madras to Chidambaram. 107 applications were received by the said Authority. The appellant and the first respondent are two of the said applicants. The State Transport Authority gave one of the permits to the Provincial Transport (Private) Limited, Madras: we are not concerned with this permit. As regards the second permit, the said Authority found none of the applicants suitable and, therefore, refused to grant the same to any one of them and directed fresh applications to be called for. Against the said order, the appellant, first respondent and others preferred appeals to the State Transport Appellate Tribunal. The appellant herein was respondent 16 and respondent herein was appellant 7 before the said Appellate Tribunal. The first respondent secured the highest total marks, viz., 71/2-, under columns 1 to 5 under the scheme of marking sanctioned by the State Government. The appellant got only 41/2 marks. Ignoring the highest total of marks secured by the first respondent, the Appellate Tribunal rejected his claim on the ground that he had his workshop and place of business en route at Cuddalore and not at either of the terminii of the route. Excluding the first respondent, the Appellate Tribunal, for the reasons mentioned in the order, preferred the appellant in a competition between him and appellant 14 before the Tribunal. The main ground of preference was that the appellant had got his workshop in the headquarters at Madras. In file result, the Appellate Tribunal rejected the application of the first respondent and gave the permit to the appellant. The first respondent filed a writ petition under Art. 226 of the Constitution in the High Court Judicature at Madras for the issue of a writ of certiorari for quashing the order of the said Tribunal. The said petition was heard by Srinivasan J., and he quashed the order of the Appellate Tribunal mainly on the ground that the Tribunal did not take into consideration a material and relevant circumstance to the enquiry before it, namely, that the petitioner had the necessary repair and maintenance facilities at Chidambaram, one of the terminii of the route in question. In that view the learned Judge quashed the order of the Appellate Tribunal. On Letters Patent Appeal, a Division Bench of the High Court, consisting of Ramachandra Iyer C.J., and Venkataraman J., held that the learned Judge should not have given a finding on the question whether the first respondent had the above said facilities at Chidambaram, but agreed with him that the Appellate Tribunal had overlooked the claim made by the first respondent to the effect that he had such facilities at Chidambaram. Hence the appeal.

"The applicant Nos. 43, 57, 69, 78 and 81 are residents of Chidambaram but No. 57 is a fleet owner. Nos. 69 and 78 have no workshop. No. 81 is a new entrant. The rest all are far away from the headquarters having no workshop at Chidambaram."

Except this vague and implied denial by Kanniah Pillai, there is nothing on the record to suggest that any other applicant denied the claim of the first respondent. The fact remains that the appellant did not at any stage of the proceedings refute the claim of the first respondent. With this background let me first look at the order of the State Transport Authority,. The said Authority has ignored the said letter of the first respondent claiming to have a workshop at Chidambaram, but it stated in an omnibus clause that the first respondent and some of the other applicants were residents either in the middle or off the route and they were not so well situated as an applicant who had facilities at one end of the route with all the necessary facilities. It may be stated that this is an implied finding against the first respondent, but the complaint of the first respondent is that it is made in utter disregard of his claim. So too, the Appellate Tribunal observed in its order disposing of the 18 appeals before it that the first respondent, who had secured the highest number of marks, including those column 1 of the mark list, 'had his workshop and place of business en route at Cuddalore and not at either of the terminii of the route. This observation was also made in utter disregard of the claim made by the first respondent that he had a workshop Chidambaram, one of the terminii of the route, and though the other applicants, except one, had not denied the said fact. The High Court, therefore, found on the material placed before it that the said Authority as well as the Tribunal had failed to consider the specific claim made by the. first respondent in regard to his work.shop at Chidambaram and, therefore, rightly set aside the order of the Appellate Tribunal so that the Appellate Tribunal might consider the claim made by the first respondent. I do not see any flaw in the reasoning of the High Court. Nor can I say that it has exceeded its jurisdiction under Art. 226 of the Constitution.

But, Mr. Setalvad. contended that there was material before the Tribunal and that the Tribunal gave its finding on the basis of that material. He relied upon an extract from the report of the Regional Transport Authority, South Arcot, dated January 31, 1957. That was a report sent by the said Authority to the State Transport Authority. Against the name of the first respondent in column 4 under the heading "possession of workshop or repair or maintenance facilities and its location" it is stated, "maintaining a workshop at per G.O. at Cuddalore". Again in the report sent by the State Transport Authority to the State Transport Appellate Tribunal, against the name of the first respondent in column 8 under the heading "Place of residence or principal place of business and the nearest distance" the entry is "Cuddalore-on the route". This information given by the Transport Authority is presumably gathered from the earlier report of the. Regional Transport Authority. Reliance is placed upon a letter dated January 10, 1957, written by the first respondent to the Secretary, State Transport Authority, in support of the contention that even the first respondent, though on July 111, 1956, he claimed to have had a workshop at Chidambaram, did not mention it therein. But a perusal of that letter shows that he did mention that he had the sector and terminal qualifications. Basing the argument on the said documents, it was contended that there was material on which the Appellate Tribunal could have come to the finding which it did, viz., that the first respondent had no workshop at either of the terminii of the route. Firstly, these documents were not expressly relied upon by the Tribunal for holding that the first respondent had no workshop at Chidambaram. Secondly, these documents were not relied upon by the appellant either before Srinivasan J., or before the Division Bench to the effect that the Appellate Tribunal gave a finding on the basis of the said material. Thirdly, one of the said documents, viz., the letter of the first respondent, does not support the contention. The other two reports did not say that the first respondent had no workshop at Chidambaram. The officers who made the report did not make any enquiry as regards the fact whether the first respondent had a workshop at Chidambaram on the basis of the claim made by him. There is, therefore, absolutely no evidence to controvert the first respondent's claim and that is the reason why the appellant did not place the said documents before the High Court in support of his contention that there was material before the State Transport Authority and the State Transport Appellate Tribunal for holding that the first respondent had no workshop at Chidambaram. A perusal of the two orders shows that presumably in view of the innumerable applications, the specific claim of the first respondent was completely missed by the Transport Authority and the Appellate Tribunal. This is, therefore, a clear case of a finding made by the Tribunal without any evidence to support it and by ignoring a specific claim made before it. I am, therefore, of opinion that the High Court rightly set aside the order of the Appellate Tribunal.